No Acts & Articles mentioned in this case
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.409 of 2022
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Muzaffarpur
======================================================
ABID ANSARI S/o Nazir Ansari Resident of Village- Barheta, Gangaram,
P.S.- Hathauri, District- Muzaffarpur.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
==============================================
with
CRIMINAL APPEAL (DB) No. 422 of 2022
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Muzaffarpur
==============================================
1.PRASHANT GUPTA S/o Jawaharlal Gupta Resident of Village- Badheta
Ganagaram, P.S.- Hatharui, Dist.- Muzzafarpur
2.Nishant Gupta S/o Jawaharlal Gupta Resident of Village- Badheta
Ganagaram, P.S.- Hatharui, Dist.- Muzzafarpur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
==============================================
with
CRIMINAL APPEAL (DB) No. 552 of 2022
Arising Out of PS. Case No.-46 Year-2019 Thana- MAHILA P.S. District- Muzaffarpur
==============================================
PINTU GUPTA Son of Tapeshwar Sah Resident of Village - Badheta
Gangaram, P.S.- Hathauri, District - Muzaffarpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
==============================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 409 of 2022)
For the Appellant/s: Mr.Arun Kumar, Adv.
For the Respondent/s: Mr. Ajay Kumar Mishra, Adv.
(In CRIMINAL APPEAL (DB) No. 422 of 2022)
For the Appellant/s: Mr. Vindhya Keshari Kumar, Sr. Adv.
Mr.Neeraj Kumar Alias Sanidh, Adv
For the Respondent/s: Mr.Ajay Mishra, APP
(In CRIMINAL APPEAL (DB) No. 552 of 2022)
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
2/20
For the Appellant/s: Ms. Akansha Ranjan, Adv.
For the Respondent/s: Mr.Ajay Mishra, APP
==============================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 21-11-2024
1. All the three appeals have been heard together
and are being disposed of by this common judgment.
2. We have heard Shri Arun Kumar, the learned
Advocate for the appellant / Abid Ansari in Cr. Appeal
(DB) No. 409/2022; Mr. Vindhyakeshari Kumar, the
learned Senior Advocate assisted by Mr. Neeraj
Kumar @ Sanidh for the appellants/ Prashant Gupta
and Nishant Gupta in Cr. Appeal (DB) No. 422 of
2022; and Ms. Akansha Ranjan, the learned Advocate
for the appellant / Pintu Gupta in Cr. Appeal (DB)
No. 522/2022. The State in all the three appeals has
been represented by Mr. Ajay Mishra, the learned
APP.
3. The appellants have been convicted for the
offences under sections 376(D), 323/34 and 341 /34
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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of the IPC and Section 6 of the POCSO Act, 2012 by
judgment dated 25.04.2022 passed by the learned
7
th
Additional Sessions Judge -cum-Special Judge,
POCSO (W), Muzaffarpur in G.R. No. 84/19 (Mahila
P.S. Case No. 46/19). By order dated 26.04.2022,
they have been sentenced to undergo R.I. for 20
years, to pay a fine of Rs. 50,000/- each and in
default of payment of fine, to further suffer S.I. for
one year for the offences under Sections 376 (D) of
the IPC and Section 6 of the POCSO Act; S.I. for one
months, to pay a fine of Rs. 500/- each and in default
of payment of fine to suffer S.I. for seven days for
the offence under Section 341/34 IPC and R.I. for
one year along with a fine of Rs. 1000/- each and in
default of payment of fine, to further suffer S.I. for
one month for the offence under Section 323/34 IPC.
The sentences have been ordered to run concurrently.
4. The victim, a 16 years old girl is alleged to have
been gangraped by all the four appellants while she
was coming back after collecting milk from a local
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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milkman on 30.07.2019.
5. The victim (PW7) has lodged the fardbeyan
recorded by one lady police officer by the name of
Abha Rani posted in Mahila Police Station (not
examined at the trial), alleging that on 30.07.2019 at
about 7.15 P.M., while she was coming back home,
she was gagged by the appellant / Prashant Gupta
and thereafter taken inside the cluster of bamboo
trees where appellants/Nishant Gupta, Pintu Gupta
and Abid Ansari raped her. She was threatened of
being killed if she spoke about the occurrence to
anybody. After the act, she could anyhow come back
home and narrate about the incident to her mother
(PW6) and thereafter became unconscious. She
regained her consciousness only in the emergency
ward of SKMCH.
6. Based on the afore-noted fardbeyan statement,
a case vide Mahila P.S. Case No. 46/19 dated
30.07.2019 was registered for investigation under
Sections 376(D), 323 and 34 of IPC and Section 4 of
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
5/20
the POCSO Act, 2012.
7. The police after investigation submitted
chargesheet against all the appellants whereupon
they were put on trial.
8. The learned Trial Court after having examined
ten witnesses on behalf of the prosecution and
thirteen on behalf of the defense, convicted and
sentenced the appellants as aforesaid.
9. While leading the arguments on behalf of the
appellants, Mr. Vindhyakeshari Kumar, the learned
Senior Advocate has argued that though a harrowing
tale has been given by the victim in her fardbeyan
statement and in her deposition before the Trial
Court, but on a careful analysis of the evidence on
record, it would clearly appear that the victim was not
making a correct statement. In order to support the
aforenoted contention, Mr. Kumar has drawn the
attention of this Court to various facts, specially the
medicological and serological reports. He has
referred to the evidence of Doctor Chetna (PW8) and
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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has submitted that the report clearly discloses that
the victim was not subjected to gangrape. Similar is
the situation with respect to the serological report in
which it could not be said with certainty whether the
blood found on the wearing apparel of the victim was
human blood and that there were no trace of
motile/dead of spermatozoa.
10. The other ground urged on behalf of the
appellant is that the mandate under Section 53A
Cr.P.C. has been blatantly flouted by the Investigator.
11. The age of the victim also could not be
assessed with any exactitude. The date of birth of the
victim on record is 14.08.2001 whereas the
occurrence had taken place on 30.07.2019. Even if
this date of birth is accepted as the correct age of
the victim, she would have been only a month less
than 18 years. That apart, without proof of the age,
the jurisdiction of the Special Court to try the POCSO
cases has been doubted by the appellants.
12. Lastly, it has been submitted that the
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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circumstances reveal that perhaps for ulterior
motives, all the appellants have been framed in this
case. Three of the appellants viz. Prashant Gupta,
Nishant Gupta and Pintu Gupta stay next doors
whereas appellant / Abid Ansari is the first cousin of
the victim. There is evidence on record indicating that
the victim was known to appellant / Prashant Gupta
with whom she wanted to elope but Prashant was
prevented from doing so by others and the entire
episode was seen by Abid, who being a brother of the
victim, had chastised her.
13. However, all these suggested motives are only
in the realm of speculation.
14. Combating the aforenoted arguments, Mr. Ajay
Mishra, the learned APP has submitted that in the
event of clear and cogent deposition of the victim, her
mother and her two uncles, namely, Md. Kasim Ansari
and Md. Firoj Ansari (PWs 3 and 4 respectively), the
prosecution story cannot be discarded merely on
account of certain discrepancies or vagueness in the
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
8/20
opinion of the Doctor, the radiologist and serologist.
He has further submitted that non compliance of
Section 53A Cr.P.C. would definitely entitle the
accused / appellants to urge for taking an adverse
inference by the Court but that cannot be the sole
ground for jettisoning the prosecution case in its
entirety. He has further submitted that the evidence
of a minor girl who has faced emotional and physical
trauma ought to be understood in that context. The
suggestion given to the witnesses regarding arriere
pensee of the witnesses including the victim to
depose against the appellants cannot out-rightly be
believed without a demur. In ultimate analysis, Mr.
Mishra contends, the appellants have gangraped a
village girl with such brutality that she had to get
herself admitted in the emergency ward of the
hospital.
15. To test the case, we will first refer to the
fardbeyan statement of the victim and her deposition
before the Trial Court supporting the accusation
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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against the appellants.
16. According to her, she was first taken under
control by the appellant / Prashant Gupta and on his
pointing appellants / Abid Ansari, Nishant and Pintu
Gupta came and held her tight. She was literally
lifted from that place and brought to a nearby
bamboo clump behind the local school. She was
gagged with her own stole and was raped
successively. She was threatened of being
administered insecticides if she ever raised any cry.
Out of the aforenoted four appellants, someone was
clicking snaps as well. She was also threatened that
the entire act would be filmed and would be made
viral. She was also bitten on her body by appellant /
Prashant Gupta. Because she started bleeding from
her mouth, the appellant thought that she was dead
and so they fled away. She could trudge back home
and narrated the incident to her mother (PW6). After
regaining her consciousness, she found herself in the
emergency ward of the hospital. It was at that time
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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that a police officer came and recorded her statement.
With respect to her age, she could only state before
the Trial Court that she had studied till 10
th
standard
but she did not remember the name of the school.
She had passed her 10
th
examination in the year
2019. She knew Prashant Gupta since her childhood.
She denied the suggestion that because her father, a
teacher, had felled a tree standing over the land of
Abid and for which a panchayati was held, Abid has
also been made accused in this case.
17. Her mother (PW6), apart from supporting what
the victim had narrated before the Trial Court, also
deposed that the wearing apparel of the victim was
seized (Ext. 3). She did not give any explanation for
the father of the victim not having come to the
witness-stand or of having made any statement to the
Investigator. She admitted that Md. Kasim Ansari
and Md. Firoj Ansari (PWs 3 and 4) are own uncles of
the victim whereas appellant / Abid Ansari is the first
cousin of the victim. She has also denied all
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
11/20
suggestions of dispute with Abid Ansari because of
cutting of a tree and of Abid having seen the victim
trying to elope with Prashant Gupta and he chastising
the victim in his capacity as brother.
18. While going through the deposition of Md.
Kasim Ansari and Md. Firoj Ansari, we found that they
are not only the uncles of the victim but are close
neighbours as well.
19. According to Kasim (PW-3), he heard some
commotion in the house of the victim on 30.07.2019.
The father of the victim was shouting and calling
people of the neighbourhood. He went to the house of
the victim and found her lying unconscious. He was
told that the victim was raped. He saw the clothes of
the victim smeared with blood. The victim was also
bleeding that time. Seeing this, he called a three-
wheeler for taking the victim to the Police Station. He
along with the father of the victim proceeded to
Hathauri Police Station and informed the officer-in-
charge about the occurrence. The officer-in-charge
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
12/20
immediately swung into action, saw the victim and
immediately made arrangements for her being
admitted in SKMCH. He knew all the appellants from
before. They ( Prashan and Nishant) did not carry a
good reputation in the locality. Prashant and Nishant
are the grand sons of one Anuchit Sah and one Sakur
Miya is the grand father of the victim. He denied that
there was any civil dispute between Anuchit Sah and
Sakur Miya.
20. Similarly, Firoj (PW-4) supported the case, but
provided an additional fact to the Trial Court. His
father had married another lady namely, Jamila
Khatoon. It was suggested to this witness that Jamila
had sold her share of land to the grand father of
Prashant and Nishant and therefore the bad blood
between them was denied by him. He also denied that
there was any panchayati with respect to such
transfer of land.
21. A look at the deposition of the Investigator
would clearly reveal that the disclosures by PW-3 and
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
13/20
PW-4, referred to above, were made for the first time
before the Trial Court and not before the Investigator.
22. The statement of Kasim (PW-3) was recorded
by the Investigator after 26 days of the reporting of
the occurrence. Kasim had never told the I.O. that
hearing the cries from the house of his brother, he
had visited the house.
23. Similarly, the statement of Firoj was also
recorded by her after 26 days. He also did not make
such detailed statement about his having seen the
victim in her house, to the Investigator.
24. According to her, even the victim and her
mother had not stated before her that the victim was
continuously bleeding after the occurrence. Rather,
the statement of Prashant in defence was that he was
known to the victim from before and was asked by
the victim herself to run away for marriage. However,
he admitted before her that he had established
physical relationship with the victim. She candidly
admitted that no effort was made by her to ascertain
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
14/20
age of the victim by obtaining school certificate. No
document also was offered on behalf of the
prosecution regarding the age of the victim.
25. She could learn only from the medical report
that the victim was sixteen to seventeen years of age.
She could also lay her hands upon the admit card
issued by Bihar School Examination Board, in which
the date of birth of the victim was recorded as
14.08.2001.
26. From her deposition, it is also absolutely clear
that the appellants after being arrested were never
subjected to any medical examination.
27. Section 53(A) of the Cr.P.C. was incorporated
in the Court mandating that when a person is arrested
on a charge of committing an offence of rape or an
attempt to commit rape and there are reasonable
grounds for believing that an examination of his
person will afford evidence as to the commission of
such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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Government or by a local authority and in the absence
of such a practitioner within the radius of sixteen
kilometres from the place where the offence has been
committed, by any other registered medical
practitioner, acting at the request of a Police Officer
not below the rank of Sub-Inspector, and for any
person acting in good faith in his aid and under his
direction, to make such an examination of the
arrested person and to use such force as is reasonably
necessary for that purpose.
28. In the case of Krishan Kumar Malik v. State
of Haryana, (2011) 7 SCC 130, the Supreme
Court had found that the failure of the prosecution to
obtain the report of the Forensic Science Laboratory,
confirming the commission of such an offence was
fatal.
29. On the scope of newly inserted Section 53(A) of
the Cr.P.C., the Supreme Court further observed that
with its incorporation in the Cr.P.C., with effect from
23.06.2006, it had become necessary for the
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
16/20
prosecution to go in for D.N.A. test in such type of
cases, facilitating the prosecution to prove the case
against the accused.
30. No doubt, a three judges Bench of the Supreme
Court in Rajendra Pralhadrao Wasnik v. State of
Maharashtra; (2019) 12 SCC 460, has held that
the provision contained under Section 53(A) is not
mandatory but non-compliance thereof would
definitely warrant an adverse inference to be drawn
(also refer to Chotkau v. State of Uttar Pradesh;
(2023) 6 SCC 742)
31. We are aghast to note that Dr. Chetna (PW-8)
has made such a tentative and a vague report,
leading to no conclusion at all. She was told about the
background facts, especially of the victim having been
raped by four accused persons. However, she found
the integrity of the hymen maintained. But in cross-
examination, replied that this may or may not reflect
any sexual act. She had found one abrasion on the
nipple but with no clear observation that it was of
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
17/20
recent past. Two apparels of the victim, as we have
already noted, were sent for forensic examination.
32. Dr. Sunil Kumar (PW-9) found that the victim’s
lower garment bore reddish brown stains at places. It
also bore greyish stains, which were neither stiff to
feel nor did they produce any characteristic bluish-
white fluorescence in ultraviolet light. Semen could
not be detected in any of the exhibits before him,
though blood was detected.
33. According to the evidence of Dr. Ajay Kumar
(PW-10), antigen-A and antigen-B, which were found
in the blood sample is common to human and
animals. However, combining the two reports, PW-10
could not conclusively opine that the blood stains
were of human blood.
34. Thus, with the Investigator having completely
abandoned her responsibilities of proper investigation
of the case; the victim having exaggerated the
accusation; her own cousin having been made
accused and her uncles making efforts at becoming
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
18/20
witnesses to the developments immediately after the
occurrence, makes the prosecution case very
doubtful.
35. True, it is that the suggestions given to the
witnesses would not make out a case, but from the
surrounding circumstances, it appears that neither the
victim nor her mother came out with a correct
version.
36. From the evidence on record along with the
matters surrounding it, we find that neither the victim
nor her mother could be called sterling witnesses or
that they are wholly reliable qua the accusation of
rape. In this situation, it would not be wide off the
mark to take note of the contradictions available in
the record.
37. We have also given our anxious consideration to
the statements made by defence witnesses, most of
whom only talked about Abid being a person of good
character and being closely related to the victim.
However, the filtrate of their deposition is that Firoj’s
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
19/20
father had married one Jamila, who had alienated the
family land falling in her share in favour of grand
father of Prashant and Nishant. Pintu appears to be
an associate of Prashant and Nishant. Abid was also
not in the good books of the family of the victim for
the reason of dispute, because of felling of a tree
unauthorizedly, which had been standing over the
land of Abid.
38. From an overall conspectus of the case, we do
not feel persuaded to put our imprimatur to the
judgment of the Trial Court in convicting and
sentencing the appellants.
39. The appellants must be given the benefit of
doubt.
40. The judgment and order of conviction and
sentence is thus set aside. The appellants are
acquitted of the charges.
41. Since all the appellants are in jail, they are
directed to be released from jail forthwith, if not
warranted or detained in any other case.
Patna High Court CR. APP (DB) No.409 of 2022 dt.21-11-2024
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42. All the three appeals are allowed.
43. Interlocutory application/s, if any, also stands
disposed of.
44. Let the copy of this judgment be communicated
to the Superintendent of concerned jail for record and
compliance.
45. Let the records of these appeals be returned to
the concerned Trial Court forthwith.
sunilkumar/-
(Ashutosh Kumar, J)
( Rajesh Kumar Verma, J)
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 22.11.2024
Transmission Date 22.11.2024
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