Patna High Court
Hare Ram Ram @ Hareram Kumar vs The State Of Bihar on 3 January, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3028 of 2023
Arising Out of PS. Case No.-103 Year-2019 Thana- MAHILA P.S. District- Bhojpur
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Hare Ram Ram @ Hareram Kumar S/o Rang Lal Ram R/o Village-
Hareyadih, Nonar, P.S- Piro O.P.(Hasan Bazar), Distt.- Bhojpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ravindra Kumar, Adv.
For the Respondent/s : Mr. Zeyaul Hoda, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 03-01-2025
Heard the parties.
2. The present matter was taken on board for
considering the prayer of bail and suspension of sentence of
above named accused/appellant, namely, Hare Ram Ram @
Hareram Kumar during pendency of appeal under Section
389(1) of the Code of Criminal Procedure (in short Cr.P.C.) as
raised through memo of appeal itself, which preferred under
Sections 374(2) of the Cr.P.C., for which a submission was
advanced as not to pressed for the present.
3. Accordingly, I.A. No. 01 of 2024 stands
dismissed as not pressed.
4. At this point, learned counsel for the appellant
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submitted that appellant namely, Hare Ram Ram @ Hareram
Kumar is in custody for more than one year and six months
against sentence of five years, therefore this appeal be heard
finally in view of Section 374(4) of the Cr.P.C.
5. Learned APP for State while opposing the prayer
of bail and suspension of sentence submitted that on earlier
occasion the bail prayer of appellant was also dismissed as not
pressed vide order dated 27.09.2023 of this Court, whereas
he didn't objected the submission of learned counsel of
appellant regarding final hearing of this matter.
6. Accordingly, this matter was taken up for final
hearing on board.
7. The above-mentioned appeals have been
preferred by the appellants/convicts under Section 374(2) of
the Code of Criminal Procedure (hereinafter referred to as
'the Code') challenging the judgment of conviction dated
12.06.2023
and order of sentence dated 17.06.2023 passed
by learned Additional District and Sessions Judge VI cum
Special Judge POCSO, Bhojpur, in POCSO Case No. 36 of
2019 (arising out of Mahila P.S. Case No. 103 of 2019),
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whereby the concerned trial court has convicted the
appellant/convict for the offences punishable under Sections
354 of the IPC and sentenced them to undergo rigorous
imprisonment for three years and fine of Rs. 5,000/- in
default of payment, learned trial court further ordered
appellant to undergo rigorous imprisonment for three months.
The sole appellant has been further awarded five years
rigorous imprisonment under Section 10 of the POCSO Act
alongwith fine of Rs. 5,000/- where in default of payment of
fine the appellant is further ordered to undergo three months
rigorous imprisonment. Both the sentences shall ordered to
run concurrently.
8. The brief case of prosecution as per written
information of the informant (PW-1) is that on the day of
occurrence i.e., 11.06.2019 at about 2.00 P.M. her four years
old daughter was playing at her door, the accused/appellant
namely, Hare Ram Ram, who is dewar of the informant
(victim’s mother) came there and took the victim in his lap
and carried away her to his cowshed, for which she did not
raised doubt as it was usual. Thereafter, she went on work. It
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is further alleged that after 10 minutes when the victim did
not return the informant/PW-1 found victim weeping loudly
on asking she told that the accused/appellant took her inside
Cowshed thereafter put her on “Chowki”, committed wrong
work upon her. She further alleged that in presence of several
persons, when pant of victim was opened, white color liquid
like substance was found on her body. When the informant
went to the house of appellant he was not present there.
9. On the basis of aforesaid written information, the
police registered a case, as Mahila P.S. Case No. 103 of 2019
for the offence under Sections 376, 511 of the Indian Penal
Code and section 6 of POCSO Act, against the appellant.
10. To substantiate its case, the prosecution has
examined altogether six witnesses, who are as under:-
Prosecution
Witnesses No(s). Names
P.W. 1 Mother of the victim
P.W. 2 Grandmother of the victim
P.W. 3 victim
P.W. 4 Dr. Vijyeta Prasad
P.W. 5 Raj Keshri Kunwar @
Dhan Keshri Kunwar
P.W. 6 Ranjana Sinha (IO)
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11. Apart from the oral evidence, the prosecution
has also relied upon following documents/exhibits in order to
prove the charges:-
Exhibit No(s). List of documents
Exhibit-P-1 Signature of informant on
fardbeyan
Exhibit-P-2 Signature of informant on
production cum seizure list
Exhibit-P-3 Medical Report of victim
Exhibit-P-4 Endorsement and signature
of SHO on fardbeyan
Exhibit-P-5 Seizure list
Exhibit-P-6 Charge sheet
Exhibit-P-7 FSL Report
12. On the basis of evidences, as surfaced during
the trial, the appellant/convict was examined under Section
313 of the Cr.P.C., where he denied all incriminatic evidences
as surfaced against him during trial and claimed his complete
innocence and false implication.
13. Neither any defence witness nor any
document was exhibited in support of defence by
appellants/convicts.
14. Upon the basis of evidences as surfaced
during the trial and also by taking note of the argument as
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advanced by the learned counsel appearing on behalf of the
parties, the learned trial court convicted appellant/convict and
passed order of sentence, as stated hereinabove.
15. Being aggrieved with aforesaid judgment of
conviction and order of sentence, the appellant/convict
preferred the present appeal.
16. Hence the present appeal.
Argument on behalf of the appellant/convict:
17. Mr. Ravindra Kumar, learned counsel for the
appellant/convict submitted that the statement of victim as
recorded under Section 164 of the Cr.P.C. and her testimony
deposed before the Court being PW-3 appears full of
contradictions on material aspects qua crime in question. It is
submitted that the said contradictions regarding occurrence
was completely overlooked by learned trial court. It is also
pointed out that in view of the depositions of PW-1 and PW-6
who is the Investigating officer of this case seizure list also
appears doubtful. It is submitted that doctor didn’t find
anything adverse. Learned counsel further submitted that the
prosecution could not connect appellant with crime in question
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on the basis of forensic report as appellant/convict was not
examined medically in view of Section 53A of the Cr.P.C.,
though he apprehended immediately after the occurrence. It
is pointed out that the victim is own niece of appellant and out
of property dispute, the present false implications was raised.
It is also submitted that from the adduced evidence it cannot
be said that prosecution established foundational aspect of
crime in question during the trial and, therefore, conviction
cannot be secured merely by importing the provision of
presumptions as available under Section 29 and 30 of the
POCSO Act.
Argument on behalf of State:
18. Mr. Zeyaul Hoda, learned APP appearing on
behalf of State categorically submitted that though admittedly
there are material contradictions out of testimony of different
prosecutions witnesses but all of them are consistent on the
point of pulling pant of victim by appellant. In this context it is
submitted that victim herself stated during the trial that
appellant pulled her pant and committed thereafter “wrong
work” upon her which reflect that same was pulled with
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“sexual intent” though he admitted that this part is lacking
from her statement recorded under Section 164 of the Cr.P.C.
It is submitted that the statement recorded under Section 164
of the Cr.P.C. is not a substantial piece of evidence therefore
weightage be given to the testimony of victim which recorded
during the trial and, therefore, the convictions as recorded by
learned trial court is not bad in eyes of law and therefore
same does not required any interference at appellate stage.
19. I have perused the trial court records carefully
and gone through the evidences available on record and also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
20. As to re-appreciate the evidences, while
disposing the present appeal, it would be apposite to discuss
the evidences available on record, which are as under:-
21. The most important witness of crime in
question is victim herself, who examined during the trial as
PW-3. It appears from the perusal of record that occurrence
took place on 11.06.2019 at 2 P.M., while victim went outside
her home for playing to nearby area, from where
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appellant/convict took her to an isolated room of his outer
courtyard and after pulling down her pant committed wrong
work upon her. Victim deposed categorically that during
occurrence appellant did not open her cloth rather he touched
her body only. It was further deposed that she fled away from
the place of occurrence and immediately came to her mother
and thereafter narrated the occurrence to her mother that
appellant committed wrong upon her, whereafter an
altercation took place between her mother and
appellant/convict. She also deposed to undergo medical
examination. She identified accused appellant before the
Court during the trial.
21.1. Upon cross-examination, she deposed that
appellant remains alone in his house along with his mother
and father. During occurrence parents of convict were
available at home but she did not raised any alarm when she
was picked up by appellant/convict in her lap. She did not
receive any injury during the occurrence and there was no
bleeding. It was stated by victim that after the occurrence an
altercation took place between the appellant and her mother.
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She denied the suggestions regarding enmity between her
parents and appellant, arising out of drainage system.
22. PW-1 is the informant of this case who is none
but the mother of the victim. It was deposed by her that she
know about the occurrence as she was told by her victim
daughter, who by that time 5 years old. It was deposed that
she after opening pant of her daughter found some white
sticky substance on her lower part of her body whereafter she
went police station and lodged this case. She identified her
thumb impression upon written information given to police
qua present crime in question on 11.06.2019, which upon her
identification exhibited as exhibit-P-1. She also handover
the pant of her victim daughter to police, which was duly
seized and was also signed by her which upon her
identification exhibited as exhibit-P-2. It was also deposed
that her victim daughter was also medically examined. She
identified the appellant/convict during the trial and deposed
that he is related to her being brother-in-law(dewar).
22.1. Upon cross examination, she categorically
stated that she is not the eye witness of the occurrence. She
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also stated that on the date and time of the occurrence, her
victim daughter was wearing frock of green color and pant of
black color. It was categorically stated that the victim said her
that she was raped by appellant/convict after opening her
pant and upon so when she examined her after opening her
pant, she found some dirty substance. She did not noticed
blood in any part of body of her daughter. She categorically
deposed that her daughter received injury on her leg. She also
stated that mark was on pant of victim daughter. She didn’t
notice any injury mark on the body of her daughter. She
shows aforesaid cloth mark to several persons gathered over
there like Meena Devi, Dhan Keshri Kumar, Mother of
Hareram Ram and other several persons, who said that it is a
mark of some bad work. The said cloth was seized in police
station. It was also categorically stated that the statement of
her victim daughter was recorded by police and on next very
day her daughter was examined medically. Initially she stated
that police never visited the place of occurrence but
subsequently it was stated that police visited place of
occurrence but she is unable to collect the date and time. The
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place of occurrence was not investigated by police before her
rather same was shown by her mother-in-law to police. She
did not notice anything which may be relevant with crime in
question at place of occurrence. She denied any altercations
with family of appellant/convict prior to this occurrence.
23. PW-2 is the grandmother of the victim she also
appears hearsay witness of the occurrence as she was
informed regarding occurrence by victim herself.
23.1. Upon cross-examination it was stated that
appellant/convict is related with her as nephew. It was stated
that both family lives separately. She stated that she was
present when the occurrence was narrated to PW-1 by victim.
She also noticed mud like mark on pant of the victim. She
also accompanied informant to police station. She deposed at
instance of Rita Devi/PW-1. She stated a new fact during her
cross-examination that after the occurrence the thigh of
victim become swollen and whole body becomes red. This fact
was never deposed by PW-1/informant of this case and also
by victim/PW-3.
24. PW-4 is Dr. Vijyeta Prasad, who examined
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victim on 12.06.2019 at Sadar Hospital, Ara finding of which
are under :-
“(i) Mark of Identification:-
A wound on right hand.
(ii) On P/A examination – Soft NAD
(iii) No medical history.
(iv) Weight – 12 kg. Height – 3 feet
(v) Dentician – IDCBA/EDCBA, ABCDE / ABCDE
(vi) On P/V examination – Hymen intact. No
tear. No bleeding. No any injury found on her
private area.
(vi) No SWAB taken for microscopical
examination.
(vii) X-ray done on SHA. RLVS-62.
Report shows –
X-ray Pelvis & B/L hip – A/P view shows no
fusion of epiphysis of bones at pelvic joint.
X-ray right elbow – A/P and lateral view shows –
No fusion of epiphysis of bones at elbow joint.
X-ray right wrist A/P and lateral shows – No
fusion of epiphysis of bones at right wrist.”
25. PW-5, is Raj Keshri Kunwar @ Dhan Keshri
Kunwar, who is a cousin grandmother of the victim she
supported the occurrence and deposed that she came to know
regarding present occurrence from PW-1/informant. She did
not made her statement before the police during
investigation.
26. PW-6 is Investigating Officer of this case who
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after recording statement of PW-1 lodged present case
regarding alleged occurrence dated 11.06.2019 which has
been registered as Mahila P.S. Case No. 103/2019 dated
11.06.2019 for the offence under Section 376/511 of the IPC
and 6 of the POCSO Act making appellant as an accused. The
FIR was endorsed by SHO namely, Madhuri Kumari. He
identified her signature regarding endorsement to lodge case,
which upon his identification was exhibited as exhibit-P-4.
He received the charge of investigation and thereafter
recorded the statement of informant/PW-1 and also witnesses
namely, Mina Devi and Ram Ji Ram (not examined). It was
also deposed by him to prepare seizure list, which bears his
signature, which upon his identification exhibited as exhibit-
P-5, during the trial. He visited the place of occurrence and
also got examined victim medically and recorded her
statement under Section 164 of the Cr.P.C.. He also sent
seized material for forensic examination and after completion
of investigation he submitted charge-sheet bearing no. 112 of
2019 on 10.12.2019 for the offence punishable under
Section 376(1) of the IPC and 6 of the POCSO Act against
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appellant which upon his identification was exhibited as
exhibit P-6.
26.1. Upon cross-examination, he stated to record
the statement of the informant at first substance and
thereafter recorded the statement of the victim. He did not
examined the body of victim, while recording her statement.
He did not noticed any mark of injury on the body of victim
and therefore he did not issued any injury report. He did not
noticed any mark related with occurrence at place of
occurrence. It was categorically stated by him that he did not
noted the statement of victim as recorded under Section 161
of the Cr.P.C. in case diary. He denied the suggestion that he
never visited the place of occurrence.
CONCLUSION:-
27. From the aforesaid available evidence, it
appears that several material contradictions surfaced out of
testimony of PW-3 qua her statement recorded under Section
164 of the Cr.P.C., where she stated nothing about receiving
injury or about bleeding. She did not even stated there that
any “wrong work” was committed upon her by appellant. It
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was stated that after the occurrence the appellant returned
home by taking her in lap and thereafter, she visited to
doctor. From the facial perusal of her statement as recorded
under Section 164 of the Cr.P.C. it transpires that the victim
received injury out of which some bleeding took place. The
statement is not sufficient to suggest that her pant was pull
down with sexual intent by appellant. It appears that she
denied completely to receive any injury during occurrence and
also any bleeding as stated by her while recording her
statement under Section 164 of the Cr.P.C.
28. In aforesaid context qua occurrence, the
depositions of PW-4 also appears important where upon
examination of victim, hymen was found intact and no tearing
was there, no bleeding and no injury was found in or around
her private part. Even doctor categorically stated that he did
not find any external injury on the body of the child including
external or internal private part of the child. He also did not
find any sign regarding rape in background of aforesaid
medical evidence. If the testimony of victim be considered
true then certainly some major contradiction appears to be
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surfaced regarding the occurrence in view of aforesaid
medical evidence.
29. PW-1 categorically stated during the trial, who
is informant of this case and mother of victim and who met
with the victim immediately after the occurrence that she
noticed injury on her leg but said injury was not noticed by
doctor upon medical examination on the very next day. As far
bodily injury is concerned, PW-2 stated that after the
occurrence the thigh of victim was swollen and body turns red
but the said fact was also not deposed either by PW-1 or PW-
3 (victim herself) and also was not noticed by PW-4 who
conducted medical examination upon the victim. All such oral
and scientific contradictions regarding injury makes the
occurrence improbable on its face.
30. From the deposition and testimony of PW-1
who is the informant of this case, it appears from her
examination-in-chief itself that she noticed “white substance”
on the body of the victim after opening her pant, whereas in
her cross-examination she stated that she noticed the mark of
“white substance” on pant of the victim, whereas PW-2 said
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pant of the victim. Upon forensic examination the said mark
was found as human semen of a person having blood group-B
in terms of exhibit-P-7. Admittedly, the appellant/accused
was not examined medically after his arrest in view of Section
53 (A) of the Cr.P.C. not even his blood sample was obtained
and no DNA test was done. In absence of the blood group of
the appellant/convict he cannot be connected with forensic
report which shows that the semen is of a human of blood
group- B. Hence, the forensic report i.e., exhibit-P-7
appears not conclusive in itself. The victim as a child is not a
disputed fact and same was also not disputed at this appellate
stage.
31. The understanding of victim regarding
occurrence was well ascertained by the learned trial court
while examining the victim by putting certain preliminary
questions and after being satisfied she was examined. The
understanding of victim was also affirmed by PW-1/informant
who is none but the mother of the victim by stating during the
trial that her child is well acquainted with the meaning of
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“balatkar” (rape/penetrative sexual assault) but said fact is
completely absent while recording her statement under
Section 164 of the Cr.P.C. and also while testifying as PW-3,
where she categorically stated that appellant did not opened
his pant during the occurrence and only touched her. This fact
also creates a doubt regarding semen on the body part of the
victim. Moreover, I.O./PW-6 stated that he did not recorded
statement of victim under Section 161 of Cr.P.C. in case
diary, which deprived appellant further to draw any attention
towards contradiction as to impeach her credibility, which
deprived appellant from his valuable right of defence.
32. Hence, having all such affirmative evidence
regarding understanding of victim qua crime in question,
testimony of victim and also her statement recorded under
Section 164 of the Cr.P.C., can not be viewed with doubt for
reason that she was only of 5 years old at the time of
occurrence in view of submission as advanced by learned APP.
33. In aforesaid context, it would be apposite to
reproduce para 22 of the legal ratio as approved by Hon’ble
Supreme Court as available through Rai Sandeep vs. State
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(NCT of Delhi) reported in (2012) 8 SCC 21, which reads
as follows:-
“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
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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.”
34. Hence, from aforesaid factual and legal
discussion, particularly by taking contradiction of statement of
victim recorded under Section 164 of the Cr.P.C., and also
her testimony, it can be said safely that she failed to qualify
the test of “sterling witness”. As prosecution failed to
established the foundational aspect of crime in question,
import of presumption as available under Section 29 and 30
of the POCSO Act, does not arises.
35. Hence the appeal stands allowed.
36. The impugned judgment of conviction dated
12.06.2023 and order of sentence dated 17.06.2023 passed
by learned Additional District and Sessions Judge VI cum
Special Judge POCSO, Bhojpur, in POCSO Case No. 36 of
2019 (arising out of Mahila P.S. Case No. 103 of 2019) is
hereby set aside/quashed.
37. Appellant namely, Hare Ram Ram @ Hareram
Kumar is in custody in connection with this case, he is directed
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to be released forthwith, if not required in any other case.
Fine, if any paid, by appellant, be returned to appellant
immediately.
38. Office is directed to send back the trial court
records and proceedings along with a copy of this judgment to
the trial court, forthwith.
(Chandra Shekhar Jha, J)
Sudha/-
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