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Patna High Court
Abhijit Kanhaiya Chakroworty @ … vs The State Of Bihar on 28 April, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.5 of 2023
Arising Out of PS. Case No.-305 Year-2021 Thana- AMARPUR District- Banka
======================================================
Abhijit Kanhaiya Chakroworty @ Abhijeet Chakrabarty S/o Kanhaiya Lal
Charoworty R/v- Dumrama, P.S.- Amarpur, District- Banka
... ... Appellant
Versus
1. The State of Bihar
2. ANJALI MUKESH CHAKRABORTY C/o Mukesh Kumar Chakraborty
R/o village and post- Dumrama, P.S.- Amarpur, District- Banka
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Vindhyakesari Kumar, Sr. Advocate
Mr. Ajay Mukherjee, Advocate
Mr. Ganesh Sharma, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Informant : Mr. Uttam Kumar Mishra, Advocate
Mr. Santosh Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 28-04-2025
Heard Mr. Vindhyakesari Kumar, learned Senior
Counsel assisted by Mr. Ajay Mukherjee, learned Advocate for the
appellant, Mr. Uttam Kumar Mishra, learned counsel for the
informant and Mr. Sujit Kumar Singh, learned Additional Public
Prosecutor for the State.
2. The present appeal has been preferred for setting
aside the judgment of conviction dated 02.11.2022 (hereinafter
referred to as the 'impugned judgment') and the order of sentence
dated 10.11.2022 (hereinafter referred to as the 'impugned order')
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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passed by learned Additional Sessions Judge-VI-cum-Special
Judge (POCSO), Banka (hereinafter called the 'learned trial court')
in Spl. POCSO Case No. 26 of 2021 arising out of Amarpur P.S. Case
No. 305 of 2021.
3. By the impugned judgment, the appellant has been
convicted for the offences under Section 376(3) of the Indian Penal
Code (in short 'IPC') and Section 4(2) of the Protection of Children
from Sexual Offences Act (in short 'POCSO Act') and by the impugned
order, the appellant has been directed to undergo rigorous
imprisonment for twenty years with a fine of Rs. 25,000/- under
Section 4(2) of the POCSO Act and in default of payment of fine,
he shall further undergo simple imprisonment for six months.
Prosecution Case
4. The prosecution story is based on the written
application of the informant (PW-5). In her written application, the
informant alleged that her husband, elder son and younger
daughter (victim girl) came to her sasural in village Dumrama. On
08.02.2021
, they came to Patna by plane, thereafter, they went to
Bhagalpur and from there, they went to their native village
Dumrama to attend Kali Pooja. On 23.02.2021, they returned to
Mumbai but after coming home, she found that her daughter was
scared and quiet, her daughter was not talking to anyone. The
informant alleged that when her daughter came home, she found
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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blood on the underpant of her daughter, she asked her about it but
she did not reply. She has stated that her daughter was bleeding
from her private part for eight days. The informant stated that she
contacted her family Doctor also. She was confused about the
bleeding of her daughter as ‘period’ at her age was not possible.
She doubted that something must have happened to her daughter in
the village but her daughter was not saying anything.
On 03.04.2021, when the informant took her daughter into
confidence and persuaded her then her daughter told her about the
occurrence which had happened when she was in village
Dumrama. Her daughter told her that she used to play with two
years old son of Abhijit Kanhaiya (this appellant). On 14.02.2021
at about 03:00 PM, this appellant called her daughter in his room
to play with his son, where his two years old son was also there.
The house of Abhijit Kanhaiya is adjacent to sasural home of the
informant. The informant further alleged that when her daughter
went in the room then this appellant took off his jeans pant and
underwear to which her daughter got scared and her daughter
asked him to open the latch of the door but he did not open and her
daughter was unable to open the latch because latch was too high.
Thereafter, this appellant forcibly undressed her daughter and
threatened her not to shout otherwise he would kill her. The
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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informant alleged that her daughter got scared and this appellant
caught hold of her from behind and committed wrong act. For a
long time, this appellant tortured her daughter, blood started
coming out of her private part. Thereafter, he opened the door and
her daughter ran out of the room but her daughter did not tell this
to anyone. After hearing all this from her daughter, she was
shocked. Her daughter told her about the occurrence after one
month.
5. On the basis of this written application, Amarpur P.S.
Case No. 305 of 2021 dated 24.06.2021 was registered under
Section 376 IPC and Section 6 of the POCSO Act. After
investigation, Police submitted chargesheet bearing No. 579 of
2021 dated 29.08.2021 against this appellant under Section 376
IPC and Section 4 of the POCSO Act. On the basis of this
chargesheet, learned trial court took cognizance of the offences
vide order dated 13.09.2021. On 03.02.2021, charges were framed
under Section 376 IPC and Section 4 of the POCSO Act. Charges
were read over and explained to the appellant in Hindi to which he
pleaded not guilty and claimed to be tried.
6. In course of trial, the prosecution examined as many
as seven witnesses and exhibited several documents to prove the
prosecution case. The defence also examined two witnesses. The
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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list of the prosecution witnesses and the defence witnesses as also
the exhibits produced on behalf of the prosecution are being
shown hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Dr. Sudha Kumari
PW-2 Shweta Kumari (I.O.)
PW-3 Victim girl (X)
PW-4 Sister of the Victim
PW-5 Mother of the Victim (Informant)
PW-6 Brother of the Victim
PW-7 Father of the VictimList of Exhibits brought on behalf of the Prosecution
Exhibit ‘P1’ Medical Report proved by PW-1
Exhibit ‘P2’ Supplementary Medical Report proved by PW-
1 Exhibit 'P3' Endorsement for Registration of FIR by PW-2 Exhibit 'P4' Formal FIR proved by PW-2 Exhibit 'P5' Chargesheet proved by PW-2 Exhibit 'P6' Signature of the victim on her statement recorded under Section 164 CrPC proved by PW-3 Exhibit 'P7' Signature of the informant on the FIR proved by PW-5 Exhibit 'P8' Signature of the informant on her statement recorded under Section 164 CrPC proved by PW-5 List of Defence Witnesses DW-1 Naresh Mohan Chakraworty DW-2 Bharat Kumar Chakarworty
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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7. Learned trial court, after analysing the evidences
available on the record found that the victim in this case is a
reliable and trustworthy witness, therefore, conviction of the
accused relying upon her sole testimony can be sustained.
8. Learned trial court observed that the victim girl had
disclosed the incident after 10-15 days of the occurrence but the
case was instituted four months thereafter of the alleged
occurrence as the family of the victim was residing in Mumbai and
the Mumbai police advised them to lodge the case in the
jurisdictional police station where the occurrence had taken place
but due to outbreak of Covid-19, they could not move out of
Mumbai. Learned trial court further observed that only after
institution of the case, the medical examination of the victim was
done and obviously, even if any injury as alleged to have been
caused to the body of the victim would have healed during the
period.
9. Learned trial court further found that the defence
witnesses have deposed about the land dispute between the parties
which is the motive of this false case but the defence has not
produced any documentary evidence in support of its contention,
therefore, the plea of having land dispute is disbelieved.
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10. Learned trial court found that the prosecution has
been able to prove the charges beyond all reasonable doubts
against the accused. Accordingly, the appellant was convicted for
the offence under Section 376(3) IPC and Section 4(2) of the
POCSO Act.
Submissions on behalf of the Appellant
11. Mr. Vindhyakesari Kumar, learned Senior Counsel
for the appellant submits that it is a case of no evidence. The First
Information Report has been lodged after four and half months of
the occurrence. The FIR was sent to the court of learned
Jurisdictional Magistrate four days after registration of the FIR.
12. Learned Senior Counsel submits that from the
evidence of the mother of the victim, it would appear that after the
victim girl reached Mumbai, her mother noticed while washing her
cloth that there were some blood stains. Then she asked from her
daughter but her daughter did not disclose anything. The mother
(PW-5) has stated that after about ten days her daughter told her
that when she was playing with the son of Abhijeet Chakrabarty
(the appellant) in village Dumrama then Abhijeet Chakrabarty
caller her saying didi-didi and committed rape on her for 20-25
minutes. He had also threatened her not to tell the occurrence to
anyone otherwise she would be killed. The mother (PW-5) has
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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stated that after hearing this she had taken the victim to Dadar
Police Station with a Lawyer and had submitted a written
application. The said written application has not been brought on
record even as it was not produced before the I.O. (PW-2) in
course of investigation of the case.
13. Learned Senior counsel submits that PW-5 has stated
that the case which she had lodged in the Dadar Police Station, on
that she had not put her signature. Police told her to go to Amarpur
and lodge the case. It is submitted that from the sequence of events
it would appear that PW-5 had come to know about the occurrence
only after ten days of the arrival of the victim girl at Mumbai on
23rd February, 2021. She had gone to Dadar Police Station where
she was advised to go to Amarpur for lodging the case but since
then PW-5 kept quiet and she went to Amarpur Police Station on
24th June, 2021. This is her own statement in paragraph ‘6’ of her
deposition. She has proved her written application as Exhibit ‘P7’.
14. Learned Senior Counsel submits that there is an
inordinate delay in lodging of the FIR. The FIR could have been
lodged even telephonically or through emails. There is also a
concept of zero FIR and had she approached Dadar Police Station,
the Dadar Police could have certainly registered a zero FIR and
sent the same to the Amarpur Police Station but no such step was
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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taken by the informant (PW-5). The inordinate delay of over three
and half months even after knowledge of the entire occurrence
would prove fatal to the prosecution case.
15. Learned Senior Counsel submits that the FIR has
been registered on 24th June but it was sent to the court of learned
jurisdictional Magistrate on 28.06.2021. The statutory mandate as
prescribed under Section 157 CrPC has not been followed and the
column in the format of Formal FIR requiring the Station House
Officer to write the date and time of dispatch of the FIR to the
court, has been left blank. A four days’ delay in sending the FIR, in
the facts of the present case would further create doubt over the
authenticity of the prosecution story. Learned Senior counsel has
relied upon the judgment of the Hon’ble Supreme Court in the
case of Meharaj Singh (L/Nk.) vs. State of U.P. reported in
(1994) 5 SCC 188 and Chotkau vs. State of U.P. reported in
(2023) 6 SCC 742 to support his contentions. He has also relied
upon the judgment of the Hon’ble Supreme Court in the case of
Sunil Kumar and Ors. vs. State of M.P. reported in (1997) 10
SCC 570 to submit that the incident in question could have been
reported to the police on phone. In the present case, however, no
such step was taken.
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16. Learned Senior Counsel further submits that the
mala fide on the part of the informant (PW-5) may be found from
the fact that when she made her statement under Section 164 CrPC
before the learned Magistrate, she alleged that the accused
Abhijeet has done the same act with two daughters of his brother
and one girl of neighbour. She has stated that her daughter is the
fourth victim of the appellant, but when PW-5 came to depose in
course of trial, she has not stated so in her examination-in-chief. In
paragraph ’31’ of her deposition, PW-5 has rather stated that the
accused has never committed any occurrence of rape. It is, thus,
submitted that in her 164 CrPC statement, PW-5 had made
exaggerated statement only to cause harassment to the appellant
who is none else but the nephew of her husband. The defence has
suggested that there was a dispute over the residential house in
village Dumrama. It is an admitted position that the informant and
her family was living in Mumbai. Her husband had shifted there
about 40 years ago.
17. Learned Senior Counsel further submits that it has
come in the evidence of the victim as well as the informant that
when the victim was taken to the doctor in Mumbai and the doctor
was informed that she was bleeding, the doctor said that she was
bleeding because of the menstruation. The doctor had also said that
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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sometimes menstruation starts in the age of the victim girl. In this
connection, the learned Senior Counsel has pointed out paragraph
’30’ of the deposition of the victim (PW-3) wherein she has stated
that the doctor at Mumbai had said that this is simple and normal
and period may come at the age of 10 years. Paragraph ’15’ of the
evidence of her mother (PW-5) corroborates the statement of the
victim (PW-3), she has stated that the family doctor had treated
PW-3 and the said doctor had said that the blood was of
menstruation/period. Learned Senior Counsel further submits that
the opinion of the doctor at Mumbai, if appreciated with the
opinion of Dr. Sudha Kumari (PW-1) who examined the victim on
28.06.2021 in the Medical College at Bhagalpur, it would appear
that PW-1 was found in between 12-14 years of age and PW-1 has
clearly stated that regarding intercourse nothing relevant has been
found. The medical examination report and the supplementary
report prepared by PW-1 are on the record as Exhibit ‘P1’ and ‘P2’
respectively.
18. Learned Senior Counsel further points out that the
mother has stated that she had washed the clothes of the victim. It
is submitted that the clothes of the victim were not handed over to
the I.O., therefore, there is no examination of the so-called blood
which was allegedly found on the cloth of the victim.
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19. Learned Senior Counsel further submits that the
place of occurrence in this case is said to be the house of the
accused. The I.O. (PW-2) has stated that she had recorded the
boundary of the house of the accused but had not recorded the
boundary of the room. The defence called upon the I.O. to say as
to who had got the place of occurrence identified? On this, the I.O.
has stated that she has not recorded in the case diary that who had
got her the place of occurrence identified. In her examination-in-
chief, she has, though, stated about visiting the place of occurrence
but who got her identified the room in which the alleged
occurrence took place is not known. The informant (PW-5) has
stated that she had reached the police station from Mumbai for
lodging the case and after lodging the case she had gone to the
house of her mother-in-law at Champa Nagar with her husband,
son and both the daughters. She has further stated in paragraph
’29’ that when Daroga Ji reached Dumrama, she was in Champa
Nagar with her husband, son and both the daughters. It is, thus,
submitted that the I.O. has done only paperwork, neither the victim
nor any of the family member of the informant was present to
show her the place of occurrence. The informant has herself stated
that she had not handed over the clothes of the victim to the I.O.
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20. In these materials, it is submitted that the learned
trial court has grossly erred in convicting the accused-appellant for
the offences under Section 376(3) IPC and Section 4(2) of the
POCSO Act, 2012.
Submissions on behalf of the Informant and the State
21. The appeal has been contested by learned counsel
for the informant and learned Additional Public Prosecutor for the
State. Mr. Uttam Kumar Mishra, learned counsel for the informant
submits that the learned trial court has noticed in paragraph ’22’
the submissions of the learned Public Prosecutor. The victim of
this case is the sole eyewitness and her evidence has been
corroborated by four other witnesses.
22. It is submitted that the delay in registration of FIR
had taken place because of the intervening Corona Pandemic
lockdown and the suggestion of the defence through DW-1 and
DW-2 that there was a previous land dispute and the desire of the
victim’s father to sell out his share of land has been rightly rejected
by the learned trial court on finding the same flimsy in nature.
Learned counsel has, therefore, submitted that no fault may be
found with the judgment of the learned trial court, hence, it may be
sustained.
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23. Learned Additional Public Prosecutor for the State
has endorsed the submissions of Mr. Mishra, learned counsel for
the informant.
Consideration
24. We have heard learned Senior Counsel for the
appellant, learned counsel for the informant and learned Additional
Public Prosecutor for the State as also perused the trial court’s
records.
25. It is evident from the materials available on the
record that the alleged occurrence is said to have taken place on
14th February, 2021 in the house of the accused during Kali Pooja
period. It has come in evidence that during Kali Pooja, there were
at least 17 members of the family who were present in the house. It
is alleged that in the occurrence which took place for 20-30
minutes, the appellant committed rape on the victim.
26. This Court finds that the victim did not disclose the
occurrence to her parent and brother who were with her. A delay of
few days in not disclosing the matter to her parents would not have
proved fatal but the facts of this case are clearly showing that the
victim could sense that she had a bleeding only during her travel to
Delhi. The date of travel to Delhi has not been disclosed in her
deposition but it has come in evidence that when she reached
Mumbai, after 10-12 days, she had disclosed the occurrence to her
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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mother. Her mother had called a lawyer in the house. The victim
(PW-3) has stated that after 3-4 days, she had disclosed the
occurrence to her sister. She has also stated that her mother had taken
her to a Doctor who said that she was having period and that was the
reason of bleeding. She has stated that her mother had also gone to
police station at Mumbai but police had not recorded her statement.
She has stated that the Advocate had taken her statement. It is, thus,
evident that only after few days of reaching to her house at Mumbai,
the entire occurrence was within the knowledge of her mother and
sister. Her mother had also taken advice of a lawyer. She had gone to
local police station at Mumbai and then had also consulted a Doctor.
In these circumstances, a delay of over three and half months even
after knowledge of the occurrence would definitely create doubt over
the authenticity of the prosecution story. This, coupled with the fact
that the formal FIR which was registered on 24.06.2021 was sent to
the court of learned Jurisdictional Magistrate only on 28.06.2021
would create doubt as to whether FIR is anti-dated.
27. In the case of Meharaj Singh (supra), the Hon’ble
Supreme Court has considered the impact of delayed lodging of the
FIR and sending the same to the learned jurisdictional court.
Paragraph ’12’ of the judgment is being reproduced hereunder for a
ready reference:-
“12. FIR in a criminal case and particularly in a murder
case is a vital and valuable piece of evidence for the
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
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The object of insisting upon prompt lodging of the FIR
is to obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature
of an afterthought. On account of delay, the FIR not
only gets bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured version
or exaggerated story. With a view to determine
whether the FIR was lodged at the time it is alleged to
have been recorded, the courts generally look for
certain external checks. One of the checks is the
receipt of the copy of the FIR, called a special report in
a murder case, by the local Magistrate. If this report is
received by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation for the
delay in despatching or receipt of the copy of the FIR
by the local Magistrate. Prosecution has led no
evidence at all in this behalf. The second external check
equally important is the sending of the copy of the FIR
along with the dead body and its reference in the
inquest report. Even though the inquest report,
prepared under Section 174 CrPC, is aimed at serving
a statutory function, to lend credence to the
prosecution case, the details of the FIR and the gist of
statements recorded during inquest proceedings get
reflected in the report. The absence of those details is
indicative of the fact that the prosecution story was still
in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-
timed to give it the colour of a promptly lodged FIR. In
our opinion, on account of the infirmities as noticed
above, the FIR has lost its value and authenticity and it
appears to us that the same has been ante-timed and
had not been recorded till the inquest proceedings were
over at the spot by PW-8.”
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28. The same view has been reiterated by the Hon’ble
Supreme Court in the case of Chotkau (supra). Paragraph ’69’ of
the judgment in the case of Chotkau (supra) reads as under:-
“69. On the question of compliance of Section
157(1) along with logical reasoning for doing so,
the following passage from the decision in
Jafarudheen v. State of Kerala8 may be usefully
quoted as under : (SCC p. 462, paras 28-29)”
“28. The jurisdictional Magistrate plays a
pivotal role during the investigation process. It
is meant to make the investigation just and fair.
The investigating officer is to keep the
Magistrate in the loop of his ongoing
investigation. The object is to avoid a possible
foul play. The Magistrate has a role to play
under Section 159CrPC.
29. The first information report in a criminal
case starts the process of investigation by letting
the criminal law into motion. It is certainly a
vital and valuable aspect of evidence to
corroborate the oral evidence. Therefore, it is
imperative that such an information is expected
to reach the jurisdictional Magistrate at the
earliest point of time to avoid any possible ante-
dating or ante-timing leading to the insertion of
materials meant to convict the accused contrary
to the truth and on account of such a delay may
also not only get bereft of the advantage of
spontaneity, there is also a danger creeping in
by the introduction of a coloured version,
exaggerated account or concocted story as a
result of deliberation and consultation.
However, a mere delay by itself cannot be a
sole factor in rejecting the prosecution’s case
arrived at after due investigation. Ultimately, it
is for the court concerned to take a call. Such a
view is expected to be taken after considering
the relevant materials.””
8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436
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29. In the aforementioned background of the materials
on the record, when this Court examines the evidence of PW-3 and
PW-5 on the point of bleeding of the victim, this Court finds that
both the witnesses are consistent in saying that when they
contacted the Doctor at Mumbai, the Doctor told them that the
victim was bleeding because she had started menstruating and it
was because of the ‘period’ with which she had been undergoing.
The informant did not approach any Doctor for further treatment
as she seems to have got convinced with the opinion of the local
Doctor that the victim was bleeding because of menstruation/
period at this age which is simple and normal.
30. This Court finds that so far as the local Doctor in
Jawaharlal Nehur Medical College and Hospital at Bhagalpur is
concerned, she has been examined as PW-1. She has opined on the
basis of X-ray report and the radiological report findings that the
victim was aged around 14 years approximately. There was no
external injury over her private part and most importantly she has
stated in paragraph ‘4’ of her deposition that regarding intercourse
nothing relevant was found. In her cross-examination, PW-1 has
reiterated that she had not found any sign of intercourse while
examining the victim (PW-3).
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31. This Court further finds from the conduct of the
informant (PW-5) that she has tried to frame a case and implicate
the appellant. In this regard, a bare perusal of her statement under
Section 164 CrPC would show that when she came to make her
first statement before the learned Magistrate, she said that the
accused had committed the same act with two daughters of his
brother and with one girl of her neighbour but in course of
investigation, no such material has come. No witness or victim has
come to support this allegation of PW-5. When the informant came
to depose in course of trial, she has herself admitted in paragraph
’31’ of her deposition that the accused has never committed any
occurrence of rape. This kind of vacillating statement of PW-5
casting aspersion on the reputation of the accused would only lead
this Court to believe that she is not at all a reliable witness. The
manner in which she has tried to develop the case against the
appellant, chances of tutoring the victim girl who, according to the
informant, was only 10 years old and as per the Doctor (PW-1) in
between 12-14 years may fall in the category of a child witness.
The chances of tutoring PW-3 cannot be ruled out.
32. On the date of examination of the victim, PW-1 has
found her aged between 12-14 years, therefore, this Court has to
consider the evidence of the victim (PW-3) with all circumspection
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and care. In the kind of the property dispute which has been
suggested by the defence in course of the evidence of the
prosecution witnesses, a possibility of framing of the appellant in a
case of this kind is present.
33. It is further evident from the materials on the record
that the informant along with her husband, son and two daughters
had visited Amarpur Police Station from Mumbai, there she lodged
the case and then went to village Champa Nagar. Her mother-in-
law or family members were not present in the said village. In
Champa Nagar, she had not disclosed the occurrence to anyone.
She has stated that there was no one from the family of her
mother-in-law there.
34. Again, it seems highly improbable that the
informant, her husband and the children went to a place which is
her mother-in-law’s village but no one was there in the house. Her
story that she had visited Champa Nagar is also not corroborated
by any independent evidence.
35. This Court finds that regarding the place of
occurrence, the I.O. has only stated that she had inspected the
place of occurrence but she has also stated that she had not
recorded statement of any independent witness. She had also not
conducted any investigation on the point of land dispute between
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the parties. It appears to this Court that the I.O. never visited the
place of occurrence, otherwise she would examined at least the
family members who were there in the house during ‘Kali Puja’.
I.O. She could not say that who had got her identified the place of
occurrence, this she had not recorded in the case diary. From the
re-examination of the I.O. (PW-2) on recall, it would appear that
the I.O. has proved the statement of the victim in paragraph ’34’ of
the case diary. She has stated that the victim had not made
statement before her that the appellant had committed rape on her
from front and behind and the sister of the victim and the victiim
had not stated in their statement under Section 161 CrPC that the
accused had taken away her sister to a room where he had
committed rape on her. The mother of the victim has not made any
statement that she had submitted an application against the
accused in Dadar, Mumbai Police Station. The I.O. had not
received any such application which PW-5 may have given to the
Dadar Police Station.
36. This Court finds that according to the I.O., the
victim was going to Delhi on 18.02.2021 and while going to Delhi,
she had sensed that blood was coming and then she was going to
washroom to clean herself. The I.O. had not contacted the family
Doctor, the Officer-in-Charge of Dadar Police Station and the
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
22/23
Advocate. She has stated that there is no independent witness in
this case. In paragraph ’15’ of her deposition, she has stated that
she had not found any sign of rape at the place of occurrence
because 2-3 months had already gone after the occurrence.
37. From the discussions made hereinabove and the
materials available on the record, this Court is of the considered
opinion that it would not be safe to sustain the conviction of the
appellant in the kind of the evidences which have been adduced in
course of trial. The victim (PW-3) of this case seems to have been
tutored at a belated stage after reaching Mumbai, still there is an
inordinate delay in lodging of the FIR, the medical evidence does
not corroborate the case of the prosecution rather the statement of
PW-3 and PW-5 that the Doctor at Mumbai had said about PW-3
that she was menstruating and bleeding for that reason, would take
this Court to conclude that the judgment of the learned trial court
is not based on correct appreciation of the materials on the record.
38. In result, the impugned judgment and order are set
aside.
39. This appeal is allowed.
40. The appellant is acquitted of the charges giving him
benefit of doubt. He is said to be in custody. He shall be released
forthwith if not wanted in any other case.
Patna High Court CR. APP (DB) No.5 of 2023 dt.28-04-2025
23/23
41. The judgment has been dictated in court, however,
the release order shall be issued forthwith and sent to the trial court
and the concerned Jail Superintendent through FAX/ E-mail and
Special Messenger at the cost of the High Court.
42. Let the trial court’s records along with a copy of this
judgment be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Ashok Kumar Pandey, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 30.04.2025 Transmission Date 30.04.2025
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