Patna High Court
Aatish Kumar @ Atish Kumar Sharma @ Atish … vs The State Of Bihar on 5 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.670 of 2021
Arising Out of PS. Case No.-446 Year-2019 Thana- CHAPRA TOWN District- Saran
======================================================
Sonu @ Tarjan @ Saddam Hussain, Son of Niyamat Mian @ Niyamat
Hussain, R/O Mohalla- Rauja, P.S.- Chapra Town, District- Saran at Chapra
... ... Appellant
Versus
1. The State of Bihar
2. Ms. X C/O Manoj Kumar Soni at Rauja West Ward No. 44, P.S- Town
Chapra, Distt.- Saran at Chapra.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 765 of 2021
Arising Out of PS. Case No.-446 Year-2019 Thana- CHAPRA TOWN District- Saran
======================================================
Aatish Kumar @ Atish Kumar Sharma @ Atish Kumar, Son of Gorakh
Sharma, R/O Village - Rauja West, P.S.- Town, District - Saran at Chapra.
... ... Appellant
Versus
1. The State of Bihar
2. Ms. X C/O Manoj Kumar Soni At Rauja West Ward No. 44, P.S- Town
Chapra, Distt.- Saran at Chapra.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 221 of 2022
Arising Out of PS. Case No.-446 Year-2019 Thana- CHAPRA TOWN District- Saran
======================================================
Ravi Raj Sharma @ Dhyani Sharma @ Dhyani, Son of Mahesh Sharma,
Resident of village - Rauza, P.S.- Chapra Town, District - Saran.
... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 670 of 2021)
For the Appellant : Mr. Chandra Mohan Jha, Advocate
For the State : Mr. Dilip Kumar Sinha, Addl.PP
For the Informant : Mr. Manish Chandra Gandhi, Advocate
Mr. Himanshu Ranjan, Advocate
(In CRIMINAL APPEAL (DB) No. 765 of 2021)
For the Appellant : Mr. Chandra Mohan Jha, Advocate
For the State : Mr. Abhimanyu Sharma, Addl.PP
For the Informant : Mr. Manish Chandra Gandhi, Advocate
Mr. Himanshu Ranjan, Advocate
(In CRIMINAL APPEAL (DB) No. 221 of 2022)
For the Appellant : Ms. Surya Nilambari, Amicus Curiae
For the State : Ms. Shashi Bala Verma, Addl.PP
For the Informant : Mr. Manish Chandra Gandhi, Advocate
Mr. Himanshu Ranjan, Advocate
======================================================
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 05-03-2025
These appeals have been preferred for setting aside the
judgment of conviction dated 11.08.2021 (hereinafter referred to as
the 'impugned judgment') and the order of sentence dated
17.08.2021
(hereinafter referred to as the ‘impugned order’) passed
by learned Exclusive Special Judge (POCSO), Saran at Chapra
(hereinafter referred to as the ‘learned trial court’) in Sessions Trial
(POCSO) No. 86 of 2019 arising out of Chapra Town P.S. Case No.
446 of 2019.
2. By the impugned judgment, the appellants have been
convicted for the offences punishable under Section 376D Indian
Penal Code (in short ‘IPC‘) and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (in short ‘POCSO Act‘ or
the ‘Act of 2012’) and by the impugned order, the appellants have
been ordered to undergo rigorous imprisonment for twenty (20) years
with a fine of Rs.20,000/- and in default of payment of fine, they
have to further undergo simple imprisonment for three months.
Prosecution Case
3. The prosecution story is based on the fardbeyan of the
victim (PW-4) recorded by S.I. Kumari Vibha Rani of Saran Mahila P.S.
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on 10.08.2019 at 21:10 hours at Patna Medical College and Hospital,
(in short ‘P.M.C.H.’), Patna. In her fardbeyan, she has stated that on
10.08.2019 at about 12:00 Noon when she was returning from her
school after appearing in the examination, on the way, (1) Dhyani
Sharma, (2) Sonu @ Tarzan and (3) Atish Kumar forcibly grabbed her,
pressed her mouth and took her to the office of Gyani Sharma, Ward
Commissioner where firstly, Dhyani Sharma raped her, thereafter Sonu
@ Tarzan raped her and when she started bleeding then Atish Kumar
raped her as a result of which when she started bleeding profusely, then
all the accused persons left her there. Thereafter, she somehow managed
to reach her house where she told about the incident to her mother then
her family members took her to Sadar Hospital, Chapra where she was
referred to another hospital for better treatment.
4. On the basis of this fardbeyan, Chapra Town P.S. Case No.
446 of 2019 dated 10.08.2019 was registered under Sections 376(D)/34
IPC and Sections 4, 5, 5(g) and 6 of the POCSO Act. Thereafter,
Sessions Trial (POCSO) No. 86 of 2019 was registered in the Sessions
Court. After investigation, Police submitted chargesheet bearing No.
660 of 2019 dated 30.09.2019 against three accused, namely, (1) Ravi
Raj Sharma @ Dhyani Sharma, (2) Sonu @ Tarzan and (3) Atish Kumar
under Section 376(D) IPC and Sections 4, 5, 5(g) and 6 of the POCSO
Act. On the basis of this chargesheet, learned Special Judge, POCSO
Act took cognizance of the offences under Section 376(D) IPC and
Section 6 of the POCSO Act vide order dated 23.10.2019. On
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19.11.2019, charges were framed under Section 376(D) IPC and Section
6 of the POCSO Act against all the three accused persons. Charges were
read over and explained to the appellants in Hindi to which they
pleaded not guilty and claimed to be tried.
5. In course of trial, the prosecution examined as many as
Seven witnesses and exhibited several documents to prove the
prosecution case. The defence also exhibited some documents. The list
of the prosecution witnesses and the exhibits are being shown hereunder
in tabular form:-
List of Prosecution Witnesses
PW-1 Sahdev Sah
PW-2 Mother of the Victim
PW-3 Father of the Victim
PW-4 Victim
PW-5 Kumari Vibha Rani (I.O.)
PW-6 Dr. Chitra Sinha
PW-7 Dr. Anupam
List of Exhibits on behalf of ProsecutionExhibit ‘1’ Signature of the mother of the victim on
the Fardbeyan
Exhibit ‘1/1’ Signature of the mother of the victim on
the Seizure List
Exhibit ‘2’ Signature of the father of the victim on the
Seizure List
Exhibit ‘3’ Signature of the victim on the Fardbeyan
Exhibit ‘4’ Signature of S.I. Vibha Kumari on the
Seizure List
Exhibit ‘4/1’ Signature of S.I. Rajesh Kumar on the
Seizure List
Exhibit ‘4/2’ Signature of S.I. Rajesh Kumar on the
Seizure List
Exhibit ‘5’ Signature of Vibha Rani on the Fardbeyan
Exhibit ‘5/1’ Writing and Signature of SHO on the
Fardbeyan
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Station writer
Exhibit ‘7’ Signature and Writing of Dr. Chitra Sinha
on the Medical Report
Exhibit ‘8’ F.S.L. ReportList of Defence Witnesses
DW-1 Mohd. Yusuf
DW-2 Umesh Kumar Mishra
DW-3 Jitan Sharma
List of Exhibits on behalf of DefenceExhibit ‘A’ Matric Certificate
Exhibit ‘A1’ Intermediate Certificate
Exhibit ‘A2’ B.Sc. Part III Marksheet
Exhibit ‘A3’ B.Sc. Part II Marksheet
Exhibit ‘A4’ B.Sc. Part I MarksheetFindings of Learned Trial Court
6. Learned trial court after analysing the evidences
available on the record found that prosecution has been able to prove
that the victim had been raped by the accused persons on 10.08.2019.
Learned trial court found that the evidence of PW-4 finds
corroboration from the medical evidence as to rape. PW-1, PW-2 and
PW-3 are the witnesses to the event subsequent to the incident.
Learned trial court opined that the victim (PW-4) is a sterling
witness. Learned trial court found that the testimony of the victim is
consistently corroborated by mother of the victim (PW-2) who has
stated that soon after the occurrence, the victim disclosed her about
the occurrence. Learned trial court found that there is no delay in
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lodging of the FIR. Learned trial court observed that the
contradictions pointed out by the defence are quite natural, minor and
do not go to the root of the case.
7. Learned trial court also took note of the defence
evidence. Learned trial court found that DW-1 who deposed in
favour of the accused, namely, Saddam Husssain happens to be his
relative. Learned trial court further found that no substantial material
has come out in the defence evidence which has potential to falsify
the prosecution case.
8. Therefore, learned trial court after close scrutiny of the
evidences available on the record came to a conclusion that the
prosecution has been able to prove its case against the appellants,
namely, Dhyani Sharma, Aatish Kumar and Sonu @ Tarjan @
Saddam Hussain beyond all reasonable doubts and held the
appellants guilty for the offences punishable under Section 376D IPC
and Section 6 of the POCSO Act.
Submissions on behalf of the appellants
9. Learned counsel(s) for the appellants have assailed
the impugned judgment and order on several grounds. It is
submitted that in the present case the officer incharge of Mahila
police station, Saran (PW-5) claims to have gone to the PMCH on
10.08.2019 itself where she recorded the fardbeyan of the victim
(PW-4) at 21.10 hours. She has stated in paragraph ‘5’ of her
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deposition that PMCH comes within the jurisdiction of Pirbahore
police station, however, no police officer from the said police
station was present, statement has been recorded by Pirbahore
police and she had not recorded any reason in the case diary as to
why she had recorded the fardbeyan of the victim. It is submitted
that in her examination-in-chief she has stated that at the time of
recording of the fardbeyan in the PMCH she had prepared the
production-cum-seizure list (exhibit-4). Learned counsel points out
that from Exhibit-4, it would appear that the mother of the victim
had produced the clothes and PW-5 had prepared a seizure list. In
paragraph ‘6’ of the seizure list it is shown that the clothes of the
victim (i) a Kathai colour janghia with pad showing some
bloodstains and (ii) a red colour salwar on which there was some
stains like blood were seized. It is, thus, evident that with Janghia
of the victim a pad was also handed over to PW-5 but ‘pad’ was
not sent to the Forensic Science Laboratory (in short ‘FSL’).
10. Learned counsel submits that Dr. Anupam (PW-6)
who has proved her letter addressed to the Superintendent, PMCH,
Patna vide memo no.1103 dated 12.09.2019 has stated in
paragraph ’14’ of her deposition that no cloth of the victim having
bloodstains was seized in PMCH. She has stated in her
examination-in-chief that the victim was referred from Sadar
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Hospital, Chapra with intra cath in right hand with Haemaccel
running and pack in situ in vagina. She was an alleged case of
sexual assault with complaint of bleeding P/V after assault. She
was unmarried and her LMP was 04.08.2019. Patient was
conscious, pallor was present and on P/A examination abodmen
was soft, on inspection, there was pack-in-situ with no active
bleeding.
11. Learned counsel submits that the evidence of the
doctor (PW-6) clearly shows that the victim (PW-5) was treated
earlier. The prosecution claims that she was first taken to Chapra
Sadar Hospital where she had received treatment and from there
she was referred to PMCH but the medical report of the victim, if
any, of the Sadar Hospital, Chapra has not been adduced in
evidence. PW-6 had found the victim having pack-in-situ in vagina
with no active bleeding, therefore, it is evident that prior to
reaching the PMCH, the victim had already changed her clothes
and what were handed over to the I.O. (PW-5) were the Janghia
with pad and red colour salwar. The mother of the victim who has
deposed as PW-2 in this case has stated in paragraph ’15’ of her
deposition that she had handed over the clothes of the victim to
police at PMCH. She has stated that it was a red colour salwar,
kathai colour of Janghia and pad and papers were also prepared by
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police but in course of her cross-examination, PW-2 has stated that
her daughter was not wearing pad on the date of the occurrence.
Thus, it is submitted that PW-2 had produced the Janghiya with
pad which were perhaps used during the menstruation period. In
fact, PW-2 has stated in paragraph ’31’ that she was aware of the
fact that when the women undergoes the monthly period then
blood comes out and the girls and women use pad. Fact is that in
FSL report no server has been detected on the ‘Janghiya’ of the
prosecutrix.
12. It is submitted that on the point of seizure of the
cloth and recording of fardbeyan of the victim on the same day of
the occurrence, prosecution evidence is full of material
inconsistency. The mother of the victim (PW-2) has stated in her
examination-in-chief that her 14 years old daughter came weeping
in the house, she was in frightened condition and on asking she
told that when she was returning from her school then on way the
accused persons-appellants took her to the office of Savita Devi
and committed rape on her. Thereafter, she brought her daughter to
Sadar Hospital, Chapra where she did not get any treatment. She
was referred to PMCH. She came Patna where she was treated.
She has stated that police came in Patna hospital and recorded the
statement of her daughter on which she had also put her signature.
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In paragraph ‘7’ of her deposition, in course of cross-examination,
PW-2 has stated that she had no meeting with police on the date of
occurrence and she had not made any statement before police on
the date of occurrence. She has categorically stated in paragraph
‘9’ of her deposition that police had recorded her statement at
Patna on the next day of the occurrence. It is, thus, submitted that
the evidence of PW-2 would clearly show that the fardbeyan of the
victim (PW-4) was recorded only on the next day of the
occurrence but the I.O. (PW-5) has anti-dated and anti-timed the
fardbeyan. Learned counsel submits that the fact that PW-2 has put
her signature on the fardbeyan still she says that on the date of the
occurrence she had no metting with the police and police had not
recorded the statement of anyone on the date of the occurrence
would clearly show that the prosecution story remained a mystery
and it was not reported to police on the date of occurrence. Neither
Chapra hospital nor PMCH reported it to the jurisdictional police
station. The seizure list has also been prepared only on the next
day of the occurrence.
13. Learned counsel further submits that the fact that the
fardbeyan of the victim was not recorded on the date of the
occurrence would be further clear from the statement of PW-2 in
paragraph ’14’ of her deposition where she has stated that the
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victim regained her consicousness on the next day after her
admission in Patna. PW-2, however, could not say the time when
the victim regained her consciousness. In paragraph ’11’ of her
deposition, PW-2 has stated that no policewala had gone from
Chapra to Patna and no one from her neighbourhood had either
gone to Sadar Hospital, Chapra or to Patna hospital. Her daughter
was getting conscious during her travel from Chapra to Patna but
then some times she was becoming unconscious. She has further
stated that no paper was given from Chapra Sadar Hospital to take
her daughter to Patna hospital. Thus, submission is that the story
that the victim had gone to Sadar Hospital Chapra has not been
proved by producing any cogent evidence. Learned counsel,
therefore, submits that the recording of fardbeyan as shown on
10.08.2019 is highly doubtful.
14. Learned counsel further points out that in paragraph
’16’ of her deposition, PW-2 has stated that the school dress of the
victim is white Salwar and blue colour Sameej. In paragraph ’17’
she has stated that in Chapra Sadar Hospital the clothes of the
victim were given of which papers were also made. It is submitted
that the prosecution case is that the victim was returning from her
school after appearing in her examination and on way she was
taken away to the place of occurence where rape was committed
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on her, therefore, the submission is that the victim was in school
dress and the white colour salwar with blue colour of sameej
which she was wearing while returning from school were required
to be seized and sent to the FSL. To whom the clothes were given
in Chapra Sadar hospital and what kind of papers were preapared
there remained a mystery.
15. In paragraph ’22’, PW-2 has further made it clear
that the seizure list of the clothes of the victim was made on the
next day of the occurrence at approximately 10-11:00 AM. It is,
thus, submitted that there is no iota of doubt that the I.O. (PW-5)
has indulged in anti-dating and anti-timing the ‘fardebyan’ and the
‘seizure list’ by putting a date of 10.08.2019 instead of 11.08.2019.
16. Learned counsel for the appellants would submit that
in this case, the age of the victim has not been duly determined in
accordance with law. As regards the place of occurrence, the I.O.
(PW-5) has stated that it is situated at a distance of 200 meters
East-North which is the house of Ward Parishad Sarita Devi, wife
of Atul Sharma and accused Ravi Raj Sharma @ Dhyani Sharma’s
brick and karkat made house. In the eastern side of the house is a
room in which straw were stored and in the west side room, office
is being run in which there is a door from road side. The I.O. has
stated that towards East-North side of the office room, there is a
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brick made one feet high platform which is seven feet in length
and about three feet in width. The rape was allegedly committed
on the platform. The I.O. claimed that there were blood mark at the
southern side of the platform and some papers were found spread
in the north side. In the boundary of the place of occurrence, the
I.O. has given the boundary as in North, there is a three feet PCC
gali, in South brick karkat house of Shankar Sah, in East Parti
land and well of Shankar Sah and in west, PCC road. Learned
counsel submits that it is evident from the boundary of the place of
occurrence that it is not surrounded by any wall and from two
sides of the place of occurrence, PCC roads/street are passing on.
The area is populated but the I.O. has stated in paragraph ‘7’ of her
deposition that she had not recorded statement of the people
residing in the boundary of the place of occurrence. PW-5 had not
even recorded the statement of Sarita Devi, her husband and the
father-in-law because according to her, they happen to be the
parents and brother’s wife of the accused. The I.O. has stated that
she had not seized the blood from the platform which is the place
of occurrence. She had also not conducted any investigation in the
school of the victim. In her fardbeyan, the victim had given her
age as 17 years.
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17. It is submitted that PW-5 claimed that she had made
a Nazri Naksha of the place of occurrence but that has not been
proved in course of trial. She has stated that the Officer-in-Charge
of the Town Police Station had called FSL Team on the same day
and with the team, Rajesh Kumar of Town Police Station had gone
to the place of occurrence and collected the evidence and prepared
seizure list. The I.O. (PW-5) has proved the signature of Rajesh
Kumar as Exhibit ‘4/1’ on the seizure list. It is submitted that the
said Rajesh Kumar who had prepared the seizure list was not made
even a chargesheet witness and has not been examined to prove the
fact that he had visited the place of occurrence and had prepared
the seizure list. The I.O. has further proved the signature on the
seizure list prepared by Rajesh Chaudhary showing seizure of the
underwear having bloodstained mark of the accused Ravi Raj
Sharma @ Dhyani Sharma. This signature has been marked
Exhibit ‘4/2’. It is submitted that Exhibit ‘4/1’ and Exhibit ‘4/2’
are the only signatures of Rajesh Kumar and Rajesh Chaudhary
which have been identified by the I.O but the witnesses to the
seizure list (Exhibit ‘4/1’ and ‘4/2’) have not been made
chargesheet witnesses and they have not been produced in course
of trial.
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18. As regards Exhibit ‘4’ which is another seizure list
said to have been prepared by Rajesh Chaudhary, learned counsel
for the appellants would submit that there is an overwriting on the
date on which the seizure list was prepared. The date and time was
earlier written as 10.08.19 and the time has been mentioned as
16:00 Hours but there is an overwriting in the date and ’10’ has
been made ’11’ at two places in Exhibit ‘4’. Initially, it was shown
prepared on the same day of the occurrence at 4.00 PM but later on
realizing that police had not registered this case by 4.00 PM on
10.08.2019 and the fardbeyan has been shown recorded on
10.08.2019 at 21.10 hours, an interpolation has been done and the
seizure list (Exhibit ‘4’) has been shown prepared on 11.08.2019.
It is submitted that in her deposition, PW-5 has categorically stated
that on the same day, the Officer-in-Charge of the Town Police
Station had called the FSL Team and Rajesh Kumar had gone with
the Team to the place of occurrence and collected the evidences.
Thus, Rajesh Kumar, who has not been examined in this case, had
gone on the same day of the occurrence. The seizure list had been
prepared in presence of two witnesses, namely, (1) Vishal Kumar
Sharma, and (2) S. Kamuddin but both the witnesses have not been
made chargesheet witnesses and they have not been examined. It is
submitted that from the evidence of PW-5 and further from Exhibit
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‘4’, it is evident that no effort was made by officer-in-charge while
sending the FSL team to the place of occurrence to send the I.O. to
the house of the prosecutrix on the same day. Recording of the
fardebyan of the victim, her parents or grandfather was possible if
the officer-in-charge of the police station had any information that
very day. On way to Sadar Hospital, police station came but the
occurrence was not reported to police by PW-2 or her husband
(PW-3) or by the grandfather of the victim. the seizure list (Exhibit
‘4’) had already been prepared. Till preparation of the seizure list
(Exhibit ‘4’), the prosecution story had not surfaced.
19. Learned counsel for the appellants has further
pointed out that the seizure list (Exhibit ‘4’), if prepared on
10.08.2019, would have definitely been submitted in the court of
learned CJM on 11.08.2019 with the copy of the fardebyan, formal
FIR and the seizure list which was prepared by PW-5 on
10.08.2019 at 21:30 Hours. It is pointed out that at the top of the
fardebyan, the formal FIR and the seizure list dated 10.08.2019
showing prepared at 21:30 Hours at PMCH, Patna by PW-5, the
In-charge, ADJ, POCSO has endorsed “seen” and put his signature
but contrary to the same, in the seizure list shown prepared
initially on 10.08.2019 at 16:00 Hours by Rajesh Chaudhary (not
examined) in which the date has been over written as ’11’, there is
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neither any endorsement of ‘seen’ or signature of the learned ADJ,
POCSO Act. Even the order dated 11.08.2019 shows submission
of only one fardbeyan and one production-cum-seizure list in the
court. There is no recording of filing/submission of the seizure list
prepared by Rajesh Chaudhary after reaching the place of
occurrence on the same day. Even the order dated 12.08.2019
would not show filing of this seizure list.
20. Learned counsel submits that the I.O. (PW-5) has
stated in paragraph ‘1’ of her examination-in-chief that on the
same day, the Officer-in-Charge of the Town Police Station
arrested two accused, namely, Sonu Kumar @ Saddam Hussain
and Atish Kumar who were medically examined in Sadar Hospital,
Chhapra and the sample of their sperm were taken and packed in a
‘dibba’. No blood sample was taken. Who collected the sample of
sperm of these accused in Sadar Hospital, Chhapra and where the
packed sample of the sperms of the accused were kept remained a
mystery. If the sample of sperm of the two accused were collected
in Sadar Hospital, Chhapra and the same were packed then why
these information were not furnished to the learned court. Both the
accused were produced in court on 11.08.2019, they were taken
into judicial custody. The another accused Dhyani Sharma @ Ravi
Ranjan Sharma was produced in court on 12.08.2009. There is no
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whisper in the court’s order that they have been medically
examined and sample of their sperms were taken in the Sadar
Hospital, Chhapra. Neither any medical examination report of the
accused-appellants have been proved in course of trial nor the
‘dibbas’ in which the sample of sperms were kept could be
produced. It is submitted that after more than a month on
17.09.2019, the I.O. submitted an application in the court in which
a prayer was made to allow her to send the seized exhibits to the
Regional Forensic Science Laboratory, Muzaffarpur for
examination but in whose presence these samples were marked
exhibits remained a mystery.
21. Learned counsel further submits that the injury
report (Exhibit ‘6’) has been prepared by Dr. Anupam in form of a
letter addressed to the Superintendent, PMCH, Patna dated
07.09.2019, except that there is no documentary evidence to show
that the victim was admitted in PMCH on 10.08.2019 and had
remained admitted there for 15 days as claimed by the victim (PW-
4) in her evidence. Dr. Anupam (PW-7) has stated in her evidence
that when she examined the victim, she was 17 years old and she
had not treated the victim on the day she reached PMCH. She has
stated that when a lady undergoes the periods, it continues for 3-4
days. She has further stated in her cross-examination that she had
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not prepared the medical report and the victim was not examined
in her presence. She has stated that the stitching of the victim was
done in her presence and she had not received any report of the
FSL. Dr. Anupam (PW-7) has stated in her examination-in-chief
that she has examined the patient and had repaired vaginal wall
tear under TIVA (total Intra Venous Anesthesia). She has stated
that medical examination report is under pen and her signature.
She has stated that from the medical report of the victim, she
cannot say that in between 10.08.2019 and 19.08.2019 what
treatment has been given to the victim and which medicine has
been administered to her. It is, with reference to this statement of
PW-7, it is submitted that the prosecution has purposely withheld
the discharge summary of the PMCH which could have shown the
kind of treatment given to the victim and the medicines
administered to her. There was no reason for the prosecution to
withhold the discharge summary of the PMCH and would have
only relied upon Exhibit ‘6’ which is nothing but in form of a letter
of Dr. Anupam (PW-7) and counter signed by Dr. Chitra Sinha
(PW-6). The report has been prepared after one month as
submitted.
22. It is lastly submitted that in this case, the FSL report
has been marked exhibit on the request of the prosecution under
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Section 294 of the Code of Criminal Procedure vide order dated
15.02.2021. Learned counsel submits that the FSL report has not
been duly proved in accordance with law. Reliance has been
placed on the judgment of this Court in the case of State of Bihar
versus Durgawati reported in 2021 (4) PLJR 516 (HC) in which
a Division Bench of this Court having found that the FSL report
was not supplied to the appellants and the signatories of the FSL
report did not turn up and the appellants were not confronted with
the contents of the FSL report in their examination under Section
313 CrPC, the Hon’ble Division Bench took a view that no
reliance can be placed on the FSL report which was taken into
evidence by the trial court without being tendered by any witness
and that too at a belated stage. It is submitted that the FSL report
(Exhibit ‘7’) leads nowhere. According to the FSL report, Exhibit
‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ had blood all over the areas but
no semen could be detected in the exhibits marked ‘A’, ‘B’, ‘C’,
‘D’, ‘E’ and ‘F’. Exhibit ‘A’, ‘B’ and ‘C’ are the cotton swab which
bore reddish brown stains and these are the seizures made by
Rajesh Chaudhary (not examined) on 10.08.2019/11.08.2018
(interpolation in the date by overwriting). If these are the blood
collected from the platform on which rape was committed, they
did not contain any semen suggesting rape on the platform. It is
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further submitted that Exhibit ‘D’ contained one old dirty pink
white cloth bag which bore reddish brown stains over large areas,
Exhibit ‘E’ contained one old dirty maroon colour said to be
Kathai colour lady janghiya which bore reddish brown stains. This
is said to be the janghiya of the victim which was seized by the
I.O. (PW-5) in PMCH but as per the FSL report, semen could not
be detected on it. Similarly, Exhibit ‘F’ contained one dirty pink
colour said to be red salwar which bore reddish brown stains, this
is also the cloth which was seized by PW-5 in PMCH but on this
also no semen could be detected. It is submitted that Exhibit ‘G’
contained one old dirty blue said to be Grey colour janghiya of
accused Ravi Raj Sharma @ Dhyani Sharma and on this, at some
places blood has been found and semen has been detected but
neither the blood nor the semen have been matched with the
samples of the accused. In fact, no blood sample of the accused
has been collected in this case and the semen present on Exhibit
‘G’ has not been matched with the sample of the semen contained
in the vial marked “H/X” of Ravi Raj Sharma @ Dhyani Sharma.
Relying upon the judgment of the Hon’ble Supreme Court in the
case of Krishna Kumar Malik versus State of Haryana reported
in (2011) 7 SCC 130, learned counsel submits that in a case of
rape in which medical evidence is vital, in absence of serological
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report and matching of the blood of the accused with the blood
present on the janghiya of the victim, it would not be prudent and
safe to convict the accused.
23. Learned counsel further submits that in this case, the
learned trial court has not even determined the age of the victim.
I.O. (PW-5) has stated that the victim had disclosed her age as 17
years in her fardbeyan. She had not visited the school of the
victim/prosecutrix and no proof of date of birth was brought on
record. In such circumstance, it was incumbent upon the trial court
to determine the age of the victim by resorting to the scheme of
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015. It is submitted that in the case of Md.
Mahmood Alam versus the State of Bihar reported in 2024 (4)
PLJR 795, a learned Co-ordinate Bench of this Court has
reviewed the case laws on the subject and held that in a case under
the POCSO Act, the settled position of law is that the foundational
facts of the alleged offence are required to be proved by the
prosecution before the court raises the presumption under Section
29 and 30 of the POCSO Act. The learned Co-ordinate Bench, it is
submitted, held that when there is no school certificate of
Panchayat or Municipal authority certificate regarding the age of
the victim, the oral testimony of the father of the victim and the
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medical opinion with regard to the age of the victim on the alleged
date of occurrence would be important to take a view as to whether
the victim was a child under the provisions of the POCSO Act. In
this case, it is submitted that neither any date of birth of the school
has been brought in evidence nor any medical examination was
conducted on the victim to determine her age through age related
examination such as ossification test.
24. It is lastly submitted that the learned trial court has
miserably failed to appreciate the evidences available on the
record and has wrongly concluded that the victim (PW-4) in this
case would fall in the category of a sterling witness.
Submissions on behalf of the informant and the State
25. On the other hand, learned counsel for the informant
and learned Additional Public Prosecutor for the State has opposed
the appeal. Relying upon paragraph ’20’ of the impugned
judgment, learned counsel submits that the learned trial court has
rejected the argument of the defence with regard to the age of the
victim by relying upon the oral testimony of the victim (PW-4) and
PW-7. PW-4 has stated that her age was 14 years and PW-7 has
assessed her age about 17 years, therefore, the prosecution has
clearly proved the age of the victim below 18 years.
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26. Learned counsel submits that the foundational facts
of the case have been duly proved in this case and the Court
should not be swayed away by minor discrepancies. Reliance has
been placed on the judgment of the Hon’ble Supreme Court in the
case of State of Punjab versus Gurmit Singh reported in (1996)
2 SCC 384.
27. It is submitted that from the pattern of cross-
examination of the defence, it would appear that different
suggestions have been given to the prosecution witnesses. In this
regard reliance has been placed on Santhosh Moolya & Anr.
State of Karnataka reported in (2010) 5 SCC 445.
28. Learned counsel has further submitted that in this
case FSL report has been rightly proved. He has relied upon the
judgment of the Hon’ble Supreme Court in the case of State of
H.P. versus Mast Ram reported in AIR 2004 SC 5056. It is
submitted that in the said case, a ballistic report submitted under
signature of the Junior Scientific Officer of Central Forensic
Laboratory was admitted in evidence. Learned counsel relies upon
sub-Section (4) of Section 293 of the CrPC which envisages that
the court should accept the documents issued by any of six officers
enumerated therein as valid evidence without examining the author
of the documents.
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29. It is submitted that in this case a school going girl
has been gang-raped and she has identified the accused, therefore,
conviction may be upheld on the basis of sole testimony of the
victim.
Consideration
30. We have heard learned counsel for the parties and
learned Additional Public Prosecutor for the State and also perused
the trial court records. On scrutiny of the materials available on the
records, we find that in this case, the alleged occurrence has taken
place on 10.08.2019 at about 12 Noon when the victim was
returning from her school after appearing in her examination. The
victim was taken to the Office of the Ward Commissioner where
she was subjected to rape. She has claimed that after she had
started bleeding, the accused persons left her there and fled away
whereafter she came her house slowly and told the entire story to
her mother. In her examination-in-chief, she has reiterated that she
was returning from her school but she claims that as soon as she
reached her house, the accused persons came and forcibly caught
hold of her and pressed her mouth. In her fardbeyan, while she has
stated that she was forcibly taken away while she was on way from
her school to her house but in her examination-in-chief, she has
changed her statement and has stated that as soon as she reached
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her house, the accused persons came there and forcibly caught
hold of her, pressed her mouth and took to the office of the Ward
Commissioner. Thus, the prosecution story with regard to the place
from where the victim was forcibly taken away has changed in
course of trial.
31. In her fardbeyan, her age has been assessed as about
17 years whereas in her deposition which took place after about
one and half year, she claimed her age as 15 years only. In her
cross-examination, she has stated that in her fardbeyan, she had
got recorded her age as 14 years and fardbeyan was read over to
her by Daroga Vibha Rani. She has stated that in the year 2016,
she was admitted in school in Class 7 but she cannot say the age
which was recorded at that time. Vibha Rani who is the I.O. of the
case and has been examined as PW-5 has stated in her deposition
in paragraph ‘7’ that in course of investigation, she had never
visited the school of the victim and she had not gathered any
information till date that on the date of occurrence whether the
victim had her examination in the school or not. PW-5 has stated
that she had recorded in the fardbeyan what she was told by the
victim and the victim had informed her age as 17 years. She
denied the suggestion that at the time of recording of the
fardbeyan, the victim had informed her age as 14 years.
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32. On the point of determination of age of the victim,
no date of birth certificate of the school of the victim has been
produced by the prosecution. No age related test has been
conducted by the Doctors, namely, Dr. Chitra Sinha (PW-6) and
Doctor Anupam (PW-7). PW-6 has stated that when she examined
the victim, she was 17 years old. In her cross-examination, she has
stated that she had not estimated the age of the victim. PW-7 has
stated that she had examined the patient (victim) aged about 17
years in O.T.
33. It is evident on the reading of the impugned
judgment that the defence had raised a plea that the victim was not
a minor but the learned trial court has rejected the said contention
of the defence by taking notice of the statement of the victim in
her fardbeyan, the statement of PW-7 and the statement of her
parents who have deposed as PW-2 and PW-3 respectively. In this
regard, we are of the opinion that the learned trial court has
completely missed out on an important aspect of the matter that is
the determination of age of the victim. It is well-settled in law that
the prosecution has to prove the foundational facts of the alleged
offence to raise presumption under Section 29 and 30 of the
POCSO Act, 2012. Section 2(d) of the Act of 2012 defines the
word ‘child’ which means a person below the age of 18 years. It is,
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therefore, mandatory to prove that the alleged victim of crime was
a child i.e. below 18 years of age, on the date of the occurrence. It
is for the prosecution to prove the minority of the victim for
application of the POCSO Act.
34. As regards the presumptions under Section 29 of the
Act of 2012, this Court has in the case of Heera Das vs. State of
Bihar and Anr. (Cr. Appeal (DB) No. 103 of 2019 disposed of
on 19.06.2024) expressed its views in agreement with the views
expressed by the Hon’ble Delhi, Calcutta, Kerala and Bombay
High Courts. Learned Co-ordinate Bench in the case of Md.
Mahmood Alam (supra) has taken a similar view as expressed in
the following judgments:-
(1) Dharmender Singh Vs. State (Govt. of NCT of
Delhi) reported in 2020 SCC Online Del 1267
(2) Sahid Hossain Biswas Vs. State of West Bengal,
reported in 2017 SCC Online Cal 5023
(3) Joy V. S. Vs. State of Kerala reported in (2019)
SCC Online Ker 783
(4) Navin Dhaniram Baraiye Vs. State of
Maharashtra reported in 2018 SCC Online Bom 1281.
35. In all these judgments, it has been held that the
presumption under Section 29 of the Act of 2012 operates only
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when the foundational facts are duly proved by the prosecution
beyond all reasonable doubt. The accused has right to rebut the
presumption either by creating a dent in the evidence of the
prosecution witness through cross-examination or by leading
evidences to prove his defence. It is also settled that rebuttal of the
presumption would be on the touch stone of preponderance of
probability.
36. Section 34 of the Act of 2012 provides the procedure
in case of commission of offence by child and determination of
age by Special Court. It reads as under:-
“34. Procedure in case of commission of offence by
child and determination of age by Special Court.–
(1) Where any offence under this Act is committed
by a child, such child shall be dealt with under the
1
provisions of [the Juvenile Justice (Care and
Protection of Children) Act, 2015 (2 of 2016)].
(2) If any question arises in any proceeding before
the Special Court whether a person is a child or not,
such question shall be determined by the Special
Court after satisfying itself about the age of such
person and it shall record in writing its reasons for
such determination.
(3) No order made by the Special Court shall be
deemed to be invalid merely by any subsequent proof
that the age of a person as determined by it under
sub-section (2) was not the correct age of that
person.”
1. Subs. By Amdt. Act 25 of 2019, vide S.9, (w.e.f. 16.8.2019).
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37. At this stage, it would be equally important to take
note of Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016) (hereinafter referred to as the ‘J.J.
Act‘ or ‘Act of 2015’) as under:-
“Section 94. Presumption and determination of
age.
(1) Where, it is obvious to the Committee or the
Board, based on the appearance of the person
brought before it under any of the provisions of this
Act (other than for the purpose of giving evidence)
that the said person is a child, the Committee or the
Board shall record such observation stating the age
of the child as nearly as may be and proceed with the
inquiry under section 14 or section 36, as the case
may be, without waiting for further confirmation of
the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by
seeking evidence by obtaining–
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in
the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test or any
other latest medical age determination test conducted
on the orders of the Committee or the Board:
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the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board
to be the age of person so brought before it shall, for
the purpose of this Act, be deemed to be the true age
of that person.”
38. In the present case, we find that the prosecution has
not led any evidence which would fall in line with the scheme of
Section 94 of the J.J. Act. The learned trial court has, therefore,
erred in rejecting the plea of the defence that the prosecution had
failed to prove that the victim was a minor at the time of
occurrence.
39. We have noticed from the evidences placed before us
that the school dress of the victim was a white colour salwar and
blue colour samij (Para ’16’ of PW-2) and according to PW-2, the
clothes of the victim were given in Chapra Sadar Hospital for
which a paper was also prepared. We do not find any clue as to
whom the clothes were handed over and which paper was prepared
at Chapra Sadar Hospital. The prosecution has not brought on
record any evidence to prove that the victim’s school dress were
handed over to the I.O. and any seizure of the same was made. On
the contrary, PW-2 who is the mother of the victim has stated that
the clothes which the victim was wearing were given to police in
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Patna Hospital and the colour of the dress is stated to be red color
salwar and ‘kathai’ color ‘janghiya’ and pad. PW-2 has stated that
the victim had been wearing black color samij and police had
prepared paper of the articles given to them. Contrary to this
statement of PW-2, the Doctor (PW-6) has stated in paragraph ’14’
of her deposition that no blood soaked cloth of the victim was
seized in PMCH, Patna. If the statement of PW-2 saying that the
clothes of the victim were given in Chapra Sadar Hospital and
paper was prepared of the same, is correct, the prosecution has
suppressed it. It would also lead to take a view that the clothes and
the pad which were produced before the I.O. (PW-5) in PMCH,
Patna by mother of the victim were some other clothes and those
were not blood soaked cloths. Further, we find that the seizure list
showing seizure of clothes, prepared by the I.O. (PW-5) in PMCH
bears a date of 10.08.2019 at 21:30 Hours. It has not been
witnesses by a Doctor or nursing staff of the PMCH. PW-2 has
categorically stated in her deposition that on the date of
occurrence, she had not met police and no statement of any kind
was recorded by police on the date of occurrence. She has gone on
to say in paragraph ’22’ of her deposition that the papers of the
clothes of the victim were prepared on the next day in between 10-
11 AM but she did not remember the time at which she had put her
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signature on the same. The evidence of PW-2 who had produced
the clothes under the seizure list creates a huge doubt over the
authenticity of the seizure list. It clearly shows that the fardbeyan
of the victim and the seizure list have been antedated and ante-
timed. If PW-2 had no meeting with police and no kind of
statement was recorded by police on the date of occurrence, the
fardbeyan on which PW-2 has put her signature as an attesting
witness is also an antedated and ante-timed document. It is also
evident that the seizure list shows one of the seizures ‘pad’ but the
‘pad’ which was seized by the I.O. (PW-5) was not sent to the FSL
and there is nothing on the record as to what happened to the said
pad which has been shown seized in the seizure list prepared by
PW-5.
40. On further appreciation of the evidences available on
the record, it appears that even though the victim along with her
parents (PW-2 and PW-3) had gone to Chapra Sadar Hospital and
then she was referred to PMCH, neither the Chapra Sadar Hospital
nor the PMCH reported the matter to the police station. PW-2 has
stated in paragraph ’36’ of her deposition that the treatment of the
victim started in Patna Hospital in the night in between 12-1:00
O’Clock. This witness has stated that her daughter was not
wearing/putting pad on the date of occurrence and she has stated in
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paragraph ’38’ of her deposition that the seizure list was prepared
at Patna. According to PW-2, the clothes were taken out from the
body of her daughter, her daughter wore a nighty and her daughter
had handed over the blood soaked cloth to police. These
statements of PW-2 are not corroborated either by the evidence of
the I.O. (PW-5) or from the seizure list. The seizure list clearly
shows that the clothes were produced by PW-2 before the I.O.
(PW-5) in PMCH. How PW-5 reached PMCH is also not evident
from the materials on the record. While recording the fardbeyan of
the victim (PW-4) said to be on 10.08.2019 at 21:00 hours, neither
the outpost In-charge of the PMCH nor any police officer from
Pirbahore Police Station within whose jurisdiction the PMCH
would fall was present. According to the I.O., the Officer-in-
Charge of Town Police Station, Chapra had called the FSL Team
on the same day but it is evident from the evidence on the record
that the I.O. (PW-5) did not reach Chapra Sadar Hospital to record
the fardbeyan of the victim or her parents on the date of
occurrence. In the kind of material inconsistency present in the
evidence of PW-2 and her clear statement that on the date of
occurrence, no statement of any kind was recorded before police
would lead this Court to conclude, that the FIR and the seizure list
shown to have been prepared in PMCH on 10.08.2019 are
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antedated and antetimed documents which are required to be
considered with all circumspection and care.
41. The prosecution has failed to prove the place from
where the victim was forcibly taken away by the accused persons.
The I.O. (PW-5) never visited the school of the victim to find out
as to whether she was a student of any school. The victim (PW-4)
has not disclosed the name of her school either in her fardbeyan or
in her examination-in-chief. She has stated in her cross-
examination that on the date of occurrence, her examination was
scheduled in the first sitting. Initially, she stated that the said
sitting would start at 09:00 AM and continues till 2:00 PM but then
she again said that the first sitting comes to an end at 12 O’clock
and second sitting starts from 12:30 PM and comes to an end at
2:00 PM. Thus, according to her, the first sitting of examination is
for three hours whereas the second sitting is only for one and half
hours. Even on this point, there is no evidence. The victim (PW-4)
has categorically stated in paragraph ’10’ that her first sitting
examination was finished at 11:45 and she had already reached her
house at 12 O’Clock. It is evident from her statement and her
fardbeyan saying that while returning from school to her house, on
way, she was forcibly caught and taken away by the accused
persons is highly doubtful. She had already reached her house at
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12:00 noon. In her house, her mother and grandfather were
present. In fact, the mother of the victim (PW-2) has stated in
paragraph ‘8’ of her deposition that for the first time when she met
the victim, the victim was in conscious condition and apart from
this witness, her husband and her father-in-law were in the house.
It is, therefore, evident that the victim (PW-4) had already returned
to her house from the school and the prosecution is withholding
the true story that how the victim (PW-4) was taken to the place of
occurrence where she was subjected to rape. There is no evidence
either of the parents or the grandfather of the victim that the victim
was forcibly taken away from her house. It is also a matter of
common sense that it would not have been possible for the accused
persons to take away the victim from her house in presence of her
parents and grandfather and then occurrence of rape would have
continued for 1-1½ hours whereafter the victim would return on
her own to her house. PW-2 has stated that they had reached Sadar
Hospital, Chapra at 01:30 PM and stayed there for half an hour but
during this half an hour, no treatment was given to the victim in
Sadar Hospital, Chapra. She has also stated that in Sadar Hospital,
Chapra, the victim had not disclosed to any doctor about her
injuries. She has stated that the victim was not in a position to
speak but the statement of PW-2 raises doubt over the veracity of
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her statement and further raises a doubt whether at all the victim
was taken to Sadar hospital, Chapra for treatment or she was
treated somewhere else. No documentary evidence of the
treatment of the victim in Sadar Hospital, Chapra has been
adduced by the prosecution. No Doctor from Chapra Sadar
Hospital has been examined to support the prosecution case that
the victim was taken to Sadar Hospital, Chapra. Victim has
claimed in her examination-in-chief that she was taken to Sadar
Hospital, Chapra where she had been treated and from there she
was referred to PMCH. She has stated that she was treated in the
hospital for one to two minutes. In paragraph ’20’ of her
deposition, the victim (PW-4) has stated that she had left for
Chapra Hospital with her mother. She cannot say the direction in
which Sadar Hospital is situated and at what distance it is.
Whereas the same victim has stated in paragraph ‘6’ of her
deposition that her school is situated towards west side of her
house and it takes 10-15 minutes in reaching her school. We have
noticed from the medical injury (Exhibit ‘7’) that it is not a
contemporaneous document. PW-6 and PW-7 have prepared it in
form of a letter to the Superintendent of P.M.C.H., after about a
month of the treatment. Why the Bed Head Ticket or the Discharge
Summary or the treatment particulars which were prepared in
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P.M.C.H. in ordinary course of treatment has not been brought on
records remain a mystery. This lacuna adds to the lopsided story of
the prosecution.
42. This Court is, therefore, of the opinion that while the
victim (PW-4) is aware of the direction and the time taken by her
in reaching her school, she has not disclosed the direction of the
hospital and the distance. Here, this Court is of the opinion that the
victim (PW-4) is not speaking the truth. She has stated that she
was treated in hospital for one to two minutes but it would be
evident from the evidence of the Doctor (PW-6) that she has
recorded the condition of the victim, she recorded that the victim
was admitted on 10.08.2019 around 09:00 PM in PMCH with intra
cath in right hand with haemaccel running and pack in situ in
Vagina. The patient was conscious and there was no active
bleeding. The evidence of PW-6 makes it clear that the victim
(PW-4) had received some treatment elsewhere, she claimed that
she was treated for one and two minutes in Sadar Hospital, Chapra
but it is not possible that within one and two minutes, such
treatment could have been given to the victim in Sadar Hospital,
Chapra. The prosecution has, therefore, miserably failed to prove
that the victim (PW-4) was taken to Sadar Hospital, Chapra and
she was referred to PMCH from Sadar Hospital. The statement of
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PW-2 that the victim was not in a position to speak in Chapra
Hospital and she had not disclosed about her injury to the doctor in
Sadar Hospital, Chapra is only an attempt to suppress the true facts
as to where the victim was taken for treatment and what was her
first version before the Doctor, who treated her initially. This Court
has already taken note of the fact that Sadar Hospital, Chapra had
not reported the matter to the police which again strengthens the
belief of this Court that the victim had not gone to Sadar Hospital,
Chapra.
43. In the evidence of I.O. (PW-5), she has stated that
she had visited the place of occurrence on 11.08.2019 and
inspected the same. She had prepared the nazri naksha and had
found blood mark on the southern side of the platform and some
papers spread in the north side. This Court finds that the I.O. had
not seized those papers and she has clearly stated that a team of
FSL with which one Rajesh Kumar of Town Police Station had
visited the place of occurrence and collected the evidence, they
prepared the seizure list. The seizure list was prepared by Rajesh
Kumar. PW-5 has proved the signature of Rajesh Kumar which has
been marked Exhibit ‘4/1’. It is evident that Rajesh Kumar who
was with the FSL Team and had collected the evidence at the place
of occurrence has not been even made a charge-sheet witness and
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has not been examined. The I.O. had not collected any evidence
from the place of occurrence is apparent on the face of her
deposition. She has stated that she received the medical
examination report of the victim on 12.09.2019 and recorded it in
her case diary but she has not stated that from whom she had
received the medical examination report of the victim on
12.09.2019 i.e. after more than a month from the date of
occurrence. I.O. (PW-5) has stated that on 17.09.2019 she had
obtained order from the court and sealed/packed all the seized
exhibits which she sent to the Forensic Science Laboratory,
Muzaffarpur on 18.09.2019. From her deposition, it appears that
the seized exhibits were sealed and packed only on 17.09.2019 i.e.
after more than a month and it is not known as to where these
seized exhibits were lying. She has stated in paragraph ’17’ of her
deposition that she had not recorded the statement of the witnesses
of the seizure list which was prepared by the FSL Team. She had
not recorded the statement of Ward Parshad Sarita Devi. She had
not recorded the statement of Sub-Inspector of Police, Rajesh
Kumar. The I.O. was suggested by defence that she had not
incorporated the evidences which she had collected and she had
prepared the case diary in her office and thereby she had not done
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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proper investigation. The suggestion was denied by the I.O. (PW-
5).
44. We find from the evidence of the I.O. that she had
not collected any evidence from the place of occurrence and had
not even examined Rajesh Kumar of the FSL team or any member
of the FSL Team who had collected the evidences which were sent
to the FSL by I.O. (PW-5) after sealing and packing the same on
17.09.2019.
45. The seizure list prepared by Rajesh Chaudhary who
is said to be the member of the FSL Team is on the record but only
the signature of Rajesh Chaudhary has been marked Exhibit ‘4’ on
25.01.2021. The two witnesses namely, Vishal Kumar Sharma and
Shlauddin have not been examined. There is also interpolation by
way of over writing on the date of seizure list which we have
already taken note of in detail in the submissions of learned
counsel for the appellants, moreover, it appears that the seizure list
prepared by Rajesh Chaudhary does not bear endorsement of the
learned incharge court whereas the other documents including
seizure list containing signature of Rajesh Chaudhary Exhibit ‘4/1’
bears the signature at the top ‘seen’ on 12.08.19. There is another
aspect of the matter which would appear from perusal of the
seizure list prepared by I.O. (PW-5) in PMCH. It is evident on
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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perusal of the seizure list prepared by the I.O. in her signature that
the date i.e. 10.08.19 with her signature has been marked Exhibit
‘4’ on 05.02.21, therefore, while signature of Rajesh Chaudhary
has also been marked Exhibit ‘4’, signature of I.O. (PW-5) has
again been marked Exhibit ‘4’. From the order dated 25.01.2021
passed by the learned trial court it would appear that on the said
date, signature of the I.O. on production-cum-seizure list was
marked Exhibit ‘4’ and on the same day the I.O. proved the
signature of S.I. Rajesh Kumar on the seizure list and this
signature was marked Exhibit ‘4/1’. We have seen that the
signature Exhibit ‘4/1’ is of one Rajesh Chaudhary and not of
Rajesh Kumar and Exhibit ‘4’ which is the signature on the
production-cum-seizure list has been signed by the learned Trial
Judge on 05.02.21. On 05.02.21 in fact the doctor (PW-6) was
produced and she was examined and cross-examined. She proved
the signature of Dr. Anupama (PW-7) on the medical report and
also identified her own signature which was marked Exhibit ‘6’.
Therefore, there is some discrepancy in the marking of exhibits by
the learned trial court which we have taken note of only to put the
record straight.
46. From the evidence of I.O. (PW-5) we further find
that two accused namely, Sonu @ Saddam Hussain and Aatish
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Kumar were arrested on 11.08.2019 and they were subjected to
medical examination in Sadar Hospital, Chapra. Their sperm
sample were separately collected in a pack container (dabba) and
thereafter, there defence statements were recorded and they were
produced in the court. It further appears that the another accused
Ravi Raj Sharma @ Dhyani Sharma was arrested by Officer
Incharge of Town Police Station and it was found that he was
wearing a blood stained underwear which was seized by Rajesh
Chaudhary who prepared the seizure list. In her evidence, she has
taken two names (1) Rajesh Kumar and (2) Rajesh Chaudhary but
neither of them has been examined. This accused was also sent for
medical examination and his sperm sample was collected. I.O. has
claimed that the sample were kept safely for FSL examination but
who kept it and where those were deposited, has not been stated.
The doctor of the Sadar Hospital, Chapra who conducted the
medical examination of the accused and collected the sperm
sample has not been examined by the I.O. and they have not been
made chargesheet witness. This Court further finds that there is no
evidence that blood sample of the accused persons were collected
after their arrest by the doctor of Sadar Hospital, Chapra. There is
no matching of blood and there is no serological report on origin
of blood group and semen which have been found on Exhibit ‘A’
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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‘B’, ‘C’, ‘D’, ‘E’, ‘F’ and ‘G’. On perusal of the FSL report which
has been marked Exhibit ‘P8’ by order of the court under Section
294 Cr.P.C. on 15.02.2021 would show that it contains description
of articles kept in parcel. We find that Exhibit ‘P8’ records the
mode in which parcel was found to be packed on receipt and
description of seal. It records as under:-
“….. The parcel contains of one wooden box enclosed with
a cloth cover which was duly sealed with impressions of
seal corresponding with the seal impression forwarded.
It contains three paper sachets marked as ‘A’, ‘B’ and ‘C’, fourpaper envelopes marked as ‘D’, ‘E’, ‘F’ and ‘G’ and three small
cartons (dabbas) marked as H, I and J respectively.”
47. The description of articles contained in the parcel
and the result of examination as disclosed in Exhibit ‘P8’ are being
quoted hereunder for a ready reference:-
1. the sachet marked ‘A’ contained one cotton swab which
bore reddish brown stains practically all over. It also bore
greyish stains which were neither stiff to feel nor did they
produce any characteristic bluish white fluorescence in
ultra violet light. The stains were taken in cotton swab from
earth by FSL team.
2. The sachet marked ‘B’ contained one cotton swab which
bore reddish brown stains over large areas. It also bore
greyish stains which were neither stiff to feel nor did they
produce any characteristic bluish white fluorescence in
ultra violet light. The stains were taken in cotton swab from
earth by FSL team.
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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3. The sachet marked ‘C’ contained one cotton swab which
bore reddish brown stains practically all over. It also bore
greyish stainsn which were neither stiff to feel nor did they
produce any characteristic bluish white fluorescence in
ultra violet light. The stains were taken in cotton swab from
cemented rectangular “Chabutara” by FSL team.
4. The envelop marked ‘D’ contained one old dirty pink
white cloth bag which bore reddish brown stains over large
areas. It also bore greyish stains which were neither stiff to
feel nor did they produce any characteristic bluish white
fluorescence in ultra violet light.
5. The envelop marked ‘E’ contained one old dirty marron
colour said to be Kathai colour ladies janghia which bore
reddish brown stains practically all over. It also bore
greyish stains which were neither stiff to feel nor did they
produce any characteristic bluish white fluorescence in
ultra violet light.
6. The envelop marked ‘F’ contained one old dirty pink
colour said to be red salwar which bore reddish brown
stains practically all over. It also bore greyish stains which
were neither stiff to feel nor did they produce any
characteristic bluish white fluorescence in ultra violet light.
7. The envelop marked ‘G’ contained one old dirty blue
said to be grey colour janghia which bore reddish brown
stains at places. It also bore greyish white stains which
were stiff to feel and which produced characteristic bluish
white fluorescence in ultra violet light. The janghia was
said to be of accused Ravi Raj Sharma alias Dhyani
Sharma.
The dabba marked ‘H’ contained one plastic vial which was
further marked as ‘x’ in this laboratory.
8. The vial marked ‘H/x’ contained one cotton swab said to
contain semen sample of Ravi Raj Sharma alias Dhyani
Sharma which bore brownish stains. It also bore greyish
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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white stains which were stiff to feel and which produced
characteristic bluish white fluorescence in ultra violet light.
The dabba marked ‘I’ contained one plastic vial which was
further marked as ‘y’ in this laboratory.
9. The vial marked “I/y” contained some cream colour
sticky liquid substance said to be semen sample of accused
Sonu alias Tarzan alias Saddam Hussain which bore
brownish stains. It also bore greyish white stains which
were stiff to feel and which produced characteristic bluish
white fluorescence in ultra violet light.
The dabba marked ‘J’ contained one plastic vial which was
further marked as ‘z’ in this laboratory.
10. The vial marked “J/z” contained some cream colour
sticky liquid substance said to be semen sample of accused
Atish Kumar which bore brownish stains. It also bore
greyish white stains which were stiff to feel and which
produced characteristic bluish white fluorescence in ultra
violet light.
RESULT OF EXAMINATION
1. Blood has been detected in the exhibits as noted below:-
(a) Exhibit marked ‘A’ ………………..all over.
(b) Exhibit marked ‘B’ ………………..over large areas.
(c) Exhibit marked ‘C’……………….all over.
(d) Exhibit marked ‘D’………………. over large areas.
(e) Exhibit marked ‘E’…………………. all over.
(f) Exhibit marked ‘F’ …………………..all over.
(g) Exhibit marked ‘G’………………….at places.
2. Semen has been detected in the exhibits marked ‘G’,
‘H/x’ ‘I/y’ and ‘J/z’.
3. Blood could not be detected in the exhibits marked
‘H/x’, ‘I/y’ and ‘J/z’.
4. Semen could not be detected in the exhibits marked A,
B, C, D, E and F.
5. Serological report on origin and group of blood and
semen would follow.”
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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48. This Court finds that sachet marked ‘A’, ‘B’ and ‘C’
are one cotton swab which were collected by the FSL team. About
sachet marked ‘A’ and sachet marked ‘B’. It is not recorded that
from where the FSL team had collected the stains in the cotton
swab. From Exhibit marked ‘C’, it only appears that the stains
were taken in cotton swab from cemented rectangular
“Chabutara” by FSL Team. Neither the blood report of the victim
nor that of the accused persons have been brought on the record
and it has not been proved by the prosecution that the blood stains
contained in Exhibit marked ‘A’, ‘B’ and ‘C’ which were sent to
the FSL team matched with whom. In absence of blood samples of
the victim or of the accused persons, it would not be possible to
conclude that the blood stain was of the victim. The non-
examination of the member of the FSL team who had collected the
blood stain in cotton would, therefore, prove fatal to the
prosecution.
49. It is evident that the blood were found all over the
Exhibit marked ‘E’ which is a kathai colour lady underwear but no
semen has been detected on this exhibit. Here, it is important to
note that the victim had her last menstruation period on
04.08.2019 only and the Doctor has opined that the period
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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continues for 3-4 days. The seizure list prepared by the I.O. in
PMCH shows that PW-2 had presented ‘jaghiya’ with the pad. The
pad is used by a female during period. What happened to the said
pad is not known. Why was that pad not presented in the court and
sent to the FSL remains a mystery. In any case, the fact that on
Exhibit marked ‘F’ and ‘G’ also the FSL report shows presence of
blood but there is no evidence that the blood found on the exhibit
‘G’ which is the ‘janghiya’ of accused Ravi Raj Sharma @ Dhyani
Sharma matched with the blood of the victim. Here again, it is
important to note that semen has been detected in Exhibit marked
‘G’ but it has not been matched with the semen sample marked
Exhibit ‘H/x’. The semen sample were collected from the accused
but who collected it, when it was collected and how it was
preserved for more than a month before sending it to the FSL have
not been proved by the prosecution. At this stage, we would take
note of the judgment of the Hon’ble Supreme Court in the case of
Krishna Kumar Malik, the Hon’ble Supreme Court has
discussed the effect of not matching the semen of the appellant
with that found on the undergarment of the prosecutrix.
Paragraphs ’43’ and ’44’ of the said judgment are as under:-
“43. With regard to the matching of the semen, we find it
from Taylor’s Principles and Practice of Medical
Jurisprudence, 2nd Edn. (1965) as under:
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
49/54“Spermatozoa may retain vitality (or free motion) in the
body of a woman for a long period, and movement should
always be looked for in wet specimens. The actual time that
spermatozoa may remain alive after ejaculation cannot be
precisely defined, but is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as much as 5 days
old. The detection of dead spermatozoa in stains may be
made at long periods after emission, when the fluid has been
allowed to dry. Sharpe found identifiable spermatozoa often
after 12 months and once after a period of 5 years. Non-
motile spermatozoa were found in the vagina after a lapse of
time which must have been 3 and could have been 4
months.”
Had such a procedure been adopted by the prosecution, then
it would have been a foolproof case for it and against the
appellant.
44. Now, after the incorporation of Section 53-A in the
Criminal Procedure Code w.e.f. 23-6-2006, brought to our
notice by the learned counsel for the respondent State, it has
become necessary for the prosecution to go in for DNA test
in such type of cases, facilitating the prosecution to prove its
case against the accused. Prior to 2006, even without the
aforesaid specific provision in CrPC the prosecution could
have still resorted to this procedure of getting the DNA test
or analysis and matching of semen of the appellant with that
found on the undergarments of the prosecutrix to make it a
foolproof case, but they did not do so, thus they must face
the consequences.”
50. In the present case, no semen has been found on the
undergarment of the prosecturix. Blood found thereon had not
been matched with that of the prosecutrix. No DNA test has been
conducted.
51. We, therefore, find that in this case, the prosecution
has not proved either the collection of Exhibits ‘A’, ‘B’ and ‘C’
from the place of occurrence by producing the witnesses who had
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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collected the same nor the prosecution has proved the serological
report and matching of blood.
52. We further notice that in this case, FSL report has
been proved under sub-section (4) of Section 294 Cr.PC. In this
regard, the order of the learned trial court passed on 15.02.2021 is
available on the record. It is evident that the FSL report has not
been tendered in evidence and it was not supplied to the
appellants. The learned trial court did not draw the attention of the
appellants towards the findings recorded in the FSL report
(Exhibit ‘P8’), during the statement of the accused persons under
Section 313 Cr.PC. In this regard, while learned counsel for the
State and the informant have heavily relied upon the judgment of
the Hon’ble Supreme Court in the case of Mast Ram (supra),
learned counsel for the appellant has relied upon the judgment of
this Court in the case of Durgawati (supra).
53. We have gone through both the judgments. It is
noticed that in case of Mast Ram (supra), the only issue which
was addressed before the Hon’ble Supreme Court was as to
whether a ballistic report submitted under the signature of Junior
Scientific Officer of the FSL would have been admitted in the
evidence under sub-Section (4) of Section 294 CrPC which
envisages that the court should accept the document issued by any
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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of six officers enumerated therein as valid evidence without
examining the author of the documents. So far as this aspect of the
matter is concerned, there is no iota of doubt that the FSL report
(Exhibit ‘P8’) is admissible in evidence but the question remains
as to whether the admission of document alone, its contents would
bind the accused or in order to bind the accused and provide a fair
trial, it was required that the FSL report be tendered by a
competent witness. In the case of Durgawati (supra), a Division
Bench of this Court having found that FSL report was not supplied
to the appellants and the signatories of the FSL did not turn up and
the appellants were not confronted with the contents of the FSL, in
their examination under Section 313 CrPC, took a view that no
reliance can be placed on the FSL report which was taken into
evidence by the learned trial court without being tendered by any
witness.
54. We are of the view that the admissibility of the
document is one thing whereas reliability of the same would be
quite different and distinct thing. In a criminal trial, where the
accused is facing a serious charge and is likely to suffer life
imprisonment, it is all the more necessary for the prosecution to
act fairly and meet all the parameters of a fair trial. We find, the
prosecution is lacking even on this aspect of the matter.
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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55. Learned trial court has held that the victim (PW-4)
would be falling in the category of a sterling witness. We have
already discussed her evidence hereinabove and have recorded our
views holding that the victim is trying to suppress true facts. We
have noticed that her evidence is materially inconsistent and while
she disclosed her age as 17 years in her fardbeyan, in her
examination-in-chief after one and half year she claimed herself
only 15 years old. She did not disclose the name of her school
though her mother (PW-2) has disclosed the name of the school in
course of her cross-examination but the date of birth of the victim
as recorded in the school has not been brought in evidence which
is the another attempt to suppress the true age of the victim.
56. We agree with the submissions of learned counsel for
the appellants that the prosecution had no faith in the statement of
the victim that she had been forcibly kidnapped or taken away by
the accused persons either from her house or while she was on
way to her house from her school and it is for this reason, no
charge under Section 363 or 364 IPC has been framed.
57. As regards, who may be called a sterling witness, the
Hon’ble Supreme Court has in the case of Rai Sandeep reported
in (2012) 8 SCC 2021 in paragraph ’22’ held as under:-
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
53/54“22. In our considered opinion, the “sterling witness” should be
of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the
end, namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be natural
and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the
cross-examination of any length and howsoever strenuous it
may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have co-
relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
version of every other witness. It can even be stated that it
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
“sterling witness” whose version can be accepted by the court
without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on
the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the court trying the offence to rely
on the core version to sieve the other supporting materials for
holding the offender guilty of the charge alleged.”
58. On the touchstone of the judgment of the Hon’ble
Supreme Court, when we examine the evidence of the victim, in our
opinion, she would not be put in the category of a sterling witness.
59. We have discussed the evidences available on the
record, in out opinion the finding of the learned trial court as regards
Patna High Court CR. APP (DB) No.670 of 2021 dt. 05-03-2025
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proving of guilt of the appellants beyond all reasonable doubts is not
sustainable. Learned trial court seems to have missed several
important aspects of the matter which we have discussed
hereinabove. We, therefore, set aside the impugned judgment and
order and acquit the appellants of all the charges giving them benefit
of doubt.
60. The appellants are reported to be in custody, they shall
be released forthwith if not wanted in any other case.
61. The trial court records along with a copy of the
judgment be sent down to the learned trial court.
62. We acknowledge the assistance rendered by Ms.
Surya Nilambari, learned Advocate as learned Amicus Curiae in
Cr. Appeal (DB) No. 221 of 2022. A consolidated sum of Rs.
15,000/- (Rupees Fifteen Thousand/-) shall be paid to the learned
Amicus Curiae by the Patna High Court Legal Services Authority
within one month from the date of receipt of a copy of this
judgment.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
Sushma2/Arvind
AFR/NAFR
CAV DATE 17.12.2024
Uploading Date 05.03.2025
Transmission Date 05.03.2025
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