Patna High Court
Amit Kumar vs The State Of Bihar on 30 October, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.640 of 2023
Arising Out of PS. Case No.-214 Year-2019 Thana- BIHTA District- Patna
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Amit Kumar, S/o Shri Awadhesh Singh, Resident of Village- Bisarpur, P.S.-
Naubatpur, District- Patna (Bihar). ... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Dhananjay Kumar, Advocate
Mr. Abhinav Pandey, Advocate
For the Respondent/s : Mr. Ramchandra Singh, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
Date : 30.10.2024
The present appeal preferred by appellant/
convict Amit Kumar against judgment of conviction dated
02.12.2022
and the impugned order of sentence dated
05.12.2022 passed by the learned Additional District and
Sessions Judge VII-cum-Exclusive Special Judge (POCSO
Act), Patna, in CIS No. Special (POCSO) Case No. 30 of
2019, arising out of Bihta P.S. Case No. 214 of 2019
whereby and whereunder the appellant/convict has been
convicted for the offences under Section 376(2)(f) of the
Indian Penal Code and Section 6 of the POCSO Act and
sentenced him to undergo R.I. for ten years and fine of
Rs. 30,000/- (Rupees thirty thousand only) for the
offence under Section 6 of the POCSO Act and in default
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of payment of fine, he shall further undergo two months
of R.I.
2. The crux of prosecution case, as it appears
from the written information of the informant, namely,
Pinki Devi (PW-3) that the accused/appellant was giving
tuition to her daughter aged about 6 years since last
three years usually between 4-5 P.M. at her house. On
23.02.2019 appellant was teaching to her daughter and
son alongwith three other childrens of locality as usual. In
due course of teaching, he asked her son and other
childrens to go out from the room. She thought that the
teacher/appellant had left her house but when she went
to room, she saw that the accused/appellant has made
her daughter naked by taking her in the corner of the
room and was committing rape upon her, she raised cry.
Upon her cry her sister-in-law, namely Punam Devi and
her Gotni came running there and caught the
accused/appellant. In the meantime, neighboring people
also arrived there. Thereafter, she informed to police,
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upon which police arrived there and arrested the
accused/appellant. Thereafter, she submitted her written
application before the police and this case was instituted.
3. With aforesaid written information of PW-
3/informant, Bihta P.S. Case No. 214/2019 was lodged
for the offences under section 376(2)(f) of the Indian
Penal Code and Section 6 of the POCSO Act.
4. After investigation, police submitted charge
sheet No. 151 of 2019 on 21.05.2019 under Section
376(2)(f) of the Indian Penal Code and Section 6 of the
POCSO Act. Thereafter, learned trial court took
cognizance against the appellant for the offence under
Section 376(2)(f) of the Indian Penal Code and Section 6
of the POCSO Act for trial and disposal.
5. To established its case before the learned trial
court, the prosecution altogether examined total of six
witnesses, namely, PW-1 Kumari Usha Sinha (I.O. of
this case) PW-2 Sanjay Kumar Yadav (father of the
victim), PW-3 Pinki Devi (mother of the
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victim/informant), PW-4 Victim herself, PW-5 Poonam
Kumari (Aunty of the victim) and PW-6 Dr. Prema Singh,
who examined the victim.
6. The prosecution also exhibited following
documents during the trial to substantiate its case which
are as:-
Exhibit-P1 -The endorsement made
over the informant written report dated
23.02.2019 by the officer-in-charge of
the Bihta Police Station.
Exhibit-P-2 The formal FIR.
Exhibit-P-3 (PW-3) The written report
dated 23.02.2019.
Exhibit-P-4 (PW-4) The statement
recorded under Section 164 Cr.P.C.
Exhibit -P-5 (PW-6) The Medical
Report.
7. 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 the
evidences as surfaced against him during trial and
claimed his complete innocence and false implication.
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8. No defence witnesses/documents were
examined on behalf of accused/appellant during the trial.
9. On the basis of aforesaid evidences,
learned trial court convicted the appellant and passed
order of sentence, as aforesaid, being aggrieved with,
appellant/convict preferred the present appeal.
10. Hence the present appeal.
11. It is submitted by Mr. Dhananjay Kumar
learned counsel appearing on behalf of the
appellant/convict that the false implication of appellant
can be easily gathered that the mother of victim
mentioned the age of victim child as six years in her
written information, whereas upon her medical
examination she was found between the age group of 12-
13 years. Such gap of age was mentioned intentionally as
to aggravate the allegation to bring the case within the
frame work of “aggravated penetrative sexual assault”. It
is submitted that the statement of victim appears
different what she recorded under Section 164 of Cr.P.C.
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and testified during trial as PW-4. It is submitted that
major contradictions amongst testimony of witnesses
regarding occurrence was overlooked by learned trial
court, which is sufficient to suggest that appellant was
implicated falsely with malafide intent due to
neighbourhood dispute. It is submitted that all witnesses
are family members and no independent witnesses were
examined in this case. Considering the age of the victim,
it was submitted that child witness must be examined
more carefully and with greater circumspection because
there is strong probability of tutoring and therefore, a
child witness must find adequate corroboration before
acting upon it. In support of his submission, learned
counsel relied upon the legal report of Hon’ble Supreme
Court as available through Panchhi & Ors. Vs. State
of U.P. reported as 1998 (7) SCC 177.
12. Learned counsel further submitted that
“finger testing” is not a scientific test as held by Hon’ble
Supreme Court through its land mark judgment available
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through State of Jharkhand Vs Shailendra Kumar Rai
& Pandav Rai, Criminal Appeal 1441 of 2022 dated
31st October, 2022, reported in (2022) 14 SCC 299.
It is also submitted that if the medical report i.e.
regarding “blood stained vulva” be believed than certainly
clothes of victim or appellant must stained with blood but
none of the prosecution witnesses found that any blood
spot was found on the clothes of the victim, which makes
the case highly improbable particularly, when the fact of
case suggest that appellant caught by mother of the
victim/PW-3, while committing penetrative sexual assault
upon victim. In support of his submission, learned counsel
submitted that the medical experts opinion is not a
conclusive proof of any fact in existence and it is only of
advisory/corroborative character.
13. In support of his aforesaid submission, he
relied upon the legal report of Hon’ble Supreme Court as
available through Vishnu Vs State of Maharashtra
reported as (2006)1 SCC 283.
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14. Learned counsel further submitted that
the clothes of victim and accused/appellant was seized by
the police but was not sent for forensic examination.
Appellant was also not examined in view of Section 53A
of Cr.P.C., despite of arrest, while committing offence. It
is also submitted that victim was also not examined
medically in view of Section 164 A of Cr.P.C., particularly
when medical examination was conducted on same very
day within six hours of occurrence. Non-scientific
examination as discussed above, creates a serious doubt
qua crime in question.
15. It is further submitted by learned counsel
that the learned trial court while examining the victim did
not put any preliminary questions to her before oath as to
assess her capability to understand the questions
regarding crime in question, and, therefore, the testimony
of victim should not be accepted, as tutoring cannot be
ruled out. In support of this submission, learned trial
court relied upon the legal report of Hon’ble Supreme
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Court as available through Pradeep Vs. State of
Haryana reported in 2023 SCC OnLine SC 777. It is
submitted that false implication can be gathered from the
deposition of PW-3 and PW-5 itself, who was none but
the mother and aunt of the victim. It is pointed out that
both these witnesses projected themselves to be an eye-
witness of the occurrence. It appears that crime in
question was first noticed by PW-3/mother of victim,
where she found accused/appellant only standing besides
victim and victim found naked. The clothe of victim was
found opened. The pant of appellant was also found
opened by PW-3 and he was found doing wrong work,
thereafter, she raised alarm. It is submitted that the
victim started to shout after seeing PW-3. Upon alarm,
PW-5 came and she found that the appellant was in
penetrative position with victim, which is almost
impossible. It is submitted that if the testimony of victim
be taken into consideration, it appears that the act of
appellant was forcible but upon medical examination, no
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injury was found on any other body part, which was
conducted immediately after 4-5 hours of the occurrence.
It is submitted that in view of aforesaid false implication
cannot be ruled out and, therefore, conclusion of doctor
that finding confirms assault is appears doubtful.
16. It is submitted that as per map shown
qua place of occurrence submitted through charge sheet,
it appears an open room as it was an open terrace ( dalan)
and, therefore, the entire prosecution story appears false
on its face on this ground alone. It is pointed out that the
father of victim/PW-2 is a habitual offender and involved
in many criminal cases, and, therefore, as appellant was
in financial disputes with uncle of victim, namely, Mukesh,
he was falsely implicated with present case. It is
submitted that the appellant categorically stated in her
examination under Section 313 of the Cr.P.C. that he was
implicated falsely due to financial dispute. While
concluding the argument, learned counsel submitted that
the age of child victim was not proved during trial in view
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of Section 94(2) of Juvenile Justice Act, 2015 and as also
approved by Hon’ble Supreme Court through Jarnail
Singh v. State of Haryana, (2013) 7 SCC 263, and
in that case the only option is to accept her age as per
her medical finding, which is based upon radiological
examination, and if it is so then her age must be above
than 12 years and, therefore, the conviction as recorded
under Section 6 of the POCSO Act by taking aggravation
as available under Section 5(m) of the POCSO Act is bad
in eye of law, as victim cannot be said below 12 years on
the date of occurrence. It is also submitted by learned
counsel that when the trustworthiness of prosecution
witnesses appears doubtful then in such case non-
examination of accused/appellant under Section 53A of
Cr.P.C. becomes fatal to the prosecution. In support of
his submission, learned counsel relied upon the report of
Hon’ble Supreme Court as available through Chotkau Vs
State of Uttar Pradesh as reported through AIR 2022
SC 4688.
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17. In view of aforesaid, it can be said safely
that the prosecution failed to established the
“penetrative sexual assault” upon victim, which is an
essential ingredient as to convict appellant either under
Section 4 or 6 of the POCSO Act, and, therefore, the
impugned judgment is fit to be quashed/set aside. It is
also submitted that above discussion of factual aspects
of this case did not allow to import the provision of
presumption as available under Sections 29 and 30 of the
POCSO Act regarding presumption.
18. Mr. Ramchandra Singh, learned APP while
arguing on behalf of the State submitted that beside
victim, this occurrence is supported by two other
prosecution witnesses i.e. PW-3 and PW-5, who are none
but the mother and aunt of the victim. It is submitted
that the medical report of victim, appears in full
corroboration as her vulva was found bleeding. The doctor
clearly opined that finding confirms assault. While
concluding argument, it is pointed that considering the
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rural background of the witnesses, certain minor
contradictions are bound to be surfaced and on this score
alone, the conviction of appellant cannot be quashed/set
aside particularly when it appears fully corroborated with
medical finding and also supported by eye-witness of the
occurrence.
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 the learned counsel appearing on behalf of
the parties.
20. As to re-appreciate the evidence, while
disposing the present appeal, it is apposite to discuss the
evidences available on record, which are as under:-
21. PW-4/victim is appearing the most
important witness of crime in question. It appears from
the record that no preliminary questions was asked to
ascertain her understanding qua crime in issue before
entering oath which prima facie appears in contrary to
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established principle of law, as available through Pradeep
Case’s (supra). It appears from her deposition that she
entered into oath directly and deposed in her
examination-in-chief that she was the student of class 4 th
of Bright Kids School, Bihta. It was deposed that
occurrence was of 23.02.2019, which took place at about
5:00 PM. She was taking tuition from appellant alongwith
4-5 childrens. The appellant was her home tutor, where
appellant usually did bad work with her and said her not
to disclose the same to her parents. On the date of
occurrence, she was asked to open her pant by appellant
and when she refused to do so, she was taken to the
corner of room, where her mouth was pressed by
appellant. Thereafter, appellant also opened his pant
and started to do some indecent work forcefully. She
was also threatened as not to disclose the incident to
anyone, failing which he might kill her. It was
categorically stated by her that she know the meaning
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of forcible indecent work and also of rape. Thereafter,
she deposed categorically that she was raped by the
appellant. She also identified her signature on her
statement recorded under Section 164 of the Cr.P.C.,
which upon her identification exhibited as Exhibit-
P4/PW-4. She also identified appellant during the
trial. She was examined medically.
21.1 Upon cross-examination, it was stated
by her that one Pinki, Anu, Ritika and Saumya
together studied with her. Her family is a joint family,
where she lived with her aunty Poonam, uncle Ajay
Kumar, uncle Mukesh, grandmother Surya Devi and
grandfather Suresh Rai. It was stated by her that her
father is doing the business of property dealing/land
broker. It was stated that her nick name is Sakshi,
whereas, as per school register, her name is Aprajita
Singh. She stated that occurrence was narrated by
her to police but it was not reported in her writing.
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She stated her name to police as Aprajita. Her
statement was recorded at her home. She also went
to police station alongwith her parents. Police visited
her home at about 7:00 PM. She went police station
after police visit at her home, where she was inquired
by police for ten minutes, which was reduced in
writing by police. Police did not seized her clothes.
She was taking tuition from appellant since last four
months. It was stated that at the time of occurrence,
her mother and aunty was available at home. At the
time of occurrence, she was wearing long frock and
pant. Her pant was completely opened by appellant,
who was wearing jeans at that time. Appellant opened
only chain. Her cloth was not stained with blood. In
the background of aforesaid depositions of victim, it
would be apposite to discuss her statement recorded
under Section 164 of Cr.P.C., where it was stated by
her that appellant made an attempt to commit
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penetrative sexual assault/rape upon her and
whenever it was attempted, she felt pain. The
occurrence was witnessed by her mother and
thereafter, she said it to her aunty that appellant
making attempt to commit penetrative sexual
assault/rape upon her since last three days. She also
stated in her statement recorded under Section 164 of
the Cr.P.C. that appellant ejaculated some substance
in her urethra after opening his chain.
21.2 Making a comparative analysis of
aforesaid testimony and statement of victim under
Section 164 of Cr.P.C., it appears that several major
contradictions surfaced qua crime in question. Firstly,
the allegation of ejaculation is absent in her
testimony, while she deposed before the court as PW-
4 as she stated under Section 164 of the Cr.P.C.
Secondly, she stated that crime in question was
noticed first by her mother/PW-3 and, thereafter,
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three days she stated the occurrence to her
aunty/fua, who examined as PW-5. This fact also not
stated before court while deposing as PW-2. Thirdly,
she stated in her examination-in-chief itself that the
appellant opened his pant also but subsequently, she
stated that appellant opened his chain of jeans only.
The fourth and major contradictions, which appears
out of these two narration is that the victim as PW-4
categorically stated that appellant committed rape
upon her but as per her statement recorded under
Section 164 of the Cr.P.C. it appears that appellant
only made an attempt to commit penetrative sexual
assault and whenever, it was made, she felt pain.
21.3 The victim was examined medically on
same day at about 11:15 PM i.e. within six hours of
the occurrence. Doctor upon medical examination,
found hymen torn and also found vulva stained with
blood, whereas no other injury was found upon any
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part of the body. As per medical examination, she was
found between age group of 12-13 years. If the
version of the victim be accepted on its face, there
must be some spermatozoa, as she categorically
stated through her statement recorded under Section
164 of the Cr.P.C. that appellant ejaculated inside her
urethra but upon medical examination, no
spermatozoa was seen. Having aforesaid evidence in
hand, it would further apposite to discuss the
deposition of PW-2 and PW-3, who are none but the
father and mother of the victim respectively. It
appears from the deposition of PW-2 that occurrence
took place on 23.02.2019, somewhere between 4-
5:00 PM, at that point of time he was in Bihta Market,
where he was informed by her wife on phone as to
come home, whereafter he came to his home and,
thereafter, told by his wife/PW-3 that appellant during
tuition class opened pant of their daughter/victim and
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his chain of pant was also opened. Taking note of
their conditions, she slapped appellant, whereafter
nearby relatives came over there knowing the
occurrence. PW-2 called Bihta Police, who arrived and
arrested appellant. It was deposed by him that at the
time of occurrence, the age of her daughter was six
years old.
21.4 Upon cross-examination, it was deposed
that he is working as a land broker in Bihta, though
he is not a registered property dealer. It was stated
that occurrence did not took place before him and he
came to know about the occurrence on his mobile
phone. It was stated that his wife/PW-3 is not
carrying any mobile, whereas he disclosed his mobile
phone as 9905665787. He informed police
somewhere between 5:10-5:15 PM and, thereafter,
ten minutes police arrived. Occurrence was narrated
to police by his wife/PW-3. Police remains there for
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five minutes and, thereafter, took away
accused/appellant with them. Police did not seized the
cloth of either victim or of appellant. He denied to
implicate appellant due to bad village politics.
22. PW-3, is Pinki Devi, who is the mother of
the victim and claimed herself to be an eye-witness of
the occurrence. She supported the date and time of
occurrence as 23.02.2019, where occurrence took
place between 4:00 to 5:00 PM. It was deposed by
her that when tuition class become over, the other
students left the room but the cycle of appellant was
remain parked there. Upon which, she got some
suspicion and went up to the room, where she found
that her daughter was standing in room beside wall
and was in naked conditions. When victim saw her,
victim started to shout, whereafter her both sisters-in-
law (Gotani and Nanad) came over there and after
holding appellant started to slap appellant. It was
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deposed that the pant of appellant was opened and
pant of victim was also opened and appellant found
doing wrong work, thereafter she called police,
whereafter several people gathered there. It was
deposed that present case was lodged by her. Written
information was recorded by the police, which was
explained to her and found it correct, she signed on it,
which upon her identification exhibited as Exhibit-
P3/PW-3. She identified appellant during trial.
22.1 Upon cross-examination, it was stated
by her that victim was the student of St. Josheph
School, Bihta. She was a regular student. She named
other students, who were taking tuition alongwith
victim as Kunal Kumar, Sonu Kumar and Monu
Kumar. It was stated that she informed police at
about 5:00 PM from her phone. She did not mention
her mobile number in FIR as it was not asked by
police, whereas she disclosed her mobile number as
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9905665787. She narrated occurrence to police
herself and by that time also, statement of her both
sisters-in law and brother-in-law, namely Mukesh was
also recorded by police. After visiting police station,
she went to government hospital. The victim was not
admitted there. The cloth of victim was not seized by
police.
23. PW-5 is sister-in-law of PW-3, namely,
Poonam Kumari. She narrated the occurrence in the
manner as it was stated by PW-3. She supported the
date and time of occurrence. She came to the place of
occurrence upon alarm raised by PW-3, where she
found that the pant of appellant was opened and the
victim was also not in her pant and she saw appellant
inserted his penis inside urethra of the victim. She
also raised alarm and slapped appellant. The mother
of victim went police station and lodged case. Her
statement was lodged by police somewhere between
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8:00 to 8:30 PM. At the time of occurrence, she was
at the house of victim. It was stated that victim did
not cry at the time of occurrence. It was stated that
police was informed by PW-3. The cloth of victim was
not seized during investigation. The appellant was not
examined medically, and when she entered into
house, the appellant was found establishing physical
relation with victim in standing position. She stated
that she also made her statement before the police
that she saw the pant of victim and appellant was
opened and he was found inserting his penis inside
the urethra of the victim. An attention was drawn to
her that she made statement to police that when she
entered into room, she saw appellant closing his
chain, which was denied by her.
24. PW-1 Kumari Usha Sinha, who is the
investigating Officer of this case, who deposed that he
took in-charge of Bihta Police Case No. 214/2019 on
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23.02.2019. After taking charge of investigation, he
perused the written information of the PW-3. He
identified the endorsement of Bihta SHO Manoj
Kumar on formal FIR which was in his handwriting
and signature, which upon her identification exhibited
as Exhibit-1. He also identified the signature of the
then SHO Manoj Kumar on formal FIR, which upon
her identification exhibited as Exhibit-2. After taking
charge of investigation, she recorded the statement of
Sanjay Gop (not examined), Shashank Yadav (not
examined), Poonam Devi wife of Ajay Kumar
(examined as PW-5). Poonam Devi W/o Ramjivan Rai
(not examined), Om Prakash Rai (not examined). She
accompanied victim during her medical examination,
thereafter she visited the place of occurrence and
found that the room was not fitted with door. After
investigation, she submitted charge-sheet bearing No.
151/2019 dated 21.05.2019 for the offences under
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Section 376(ii)(f) of the Indian Penal Code and
Section 4 of the POCSO Act. It was stated by her that
the appellant was also examined medically but she
could not collect his medical examination report. She
did not examine the age of victim during investigation.
It was stated by the parents of victim that she studied
at home only and is not admitted with any school. She
did not found any objectionable material at the place
of occurrence.
25. PW-6 Dr. Prema Singh, who was posted
as Medical Officer on 15.08.2019 at PHC, Bihta, Patna
and examined the victim at about 11.15 AM on
23.02.2019 and found following injuries on her person:-
On examination, Patient was
conscious, Wt. 19 Kg., Height- 4 feet, Teeth-upper
13, lower 13.
Marks of identification-
i. An old scar mark over right
temporal area.
ii. A til over right hand.
Pelvic Examination- Vagina admits
one finger.
Discharge clear. Hymen torn.
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stained. (Lacerated)- Other parts of body no
injury.
6- X-ray report- Department of
radiology PMCH, Patna. X-ray no- 272 dated 25-
02-2019.
7- X-ray both elbow (AP view)-
There is Non fusion of the epiphysis of the medial
epicondyle of humerous on both sides. There is
Non fusion of the epiphysis of head of radius on
both sides. In females the epiphysis of the medial
epicondyle of humerous fuses at the age of 14
years. In females the radial head epiphysis fuses
at the age of 14 years.
8- X-Ray Both Wrist (A.P. view):-
There is Non fusion of the distal ulnar epiphysis on
the both sides. There is Non fundion of the distal
radial epiphysis on the both sides. In females the
distal ulnar epiphysis fuses at the age of 17 years.
In females the distal radial epiphysis fuses at the
age 16.5 years.
9- Conclusion- Age of victim 12-13
years Vaginal senear slide(Dept of patholody PMCH
Patna) Lab no. 45 dated 25-02-2019.
No spermatozoa seen. above finding
confirms assault done.
10- This report has been written and
prepared and signed by me. On her identification
this report is marked Exhibit- P5 (PW-6).
Cross Examination on behalf of the
Defence-
She posted at Bihta Primary Health Center
since January 2012 and currently still
posted there. The victim was medically
examined on 23.02.2019. This report
Exhibit-5 is dated 15.08.2019.
12. It is not mentioned in this report
Exhibit-5 with whom the victim came to the
Primary Health Center.
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13. The pathology report is from Patna
PMCH, and it is dated 25.02.2019. She was
never been posted as a medical officer at
PMCH Patna.
14. The pathology report dated 25.02.2019
was prepared by the pathologist at PMCH.
15. It is correct to say that she was not a
pathologist. It is true that her Bihta Primary
Health Center does not have the laboratory
and pathology facilities for spermatozoa
testing. It is also correct that this facility
was not available on 23.02.2019.
16. Her Bihta Primary Health Center did not
have the facilities for an age-related
examination by a radiologist. These facilities
are still not available.
17. The radiology report dated 25.02.2019
is from PMCH Patna. It is not from her
Bihta hospital. This was not prepared in her
presence.
18. It is correct that in her Exhibit 5, X-ray
no. 272 dated 25.02.2019 is mentioned,
but that X-ray was not taken by her. The X-
ray was taken at PMCH. She was not
present at PMCH, and she cannot say who
took the X-ray.
Similarly, the Lab No. 45 dated
25.02.2019 mentioned in Exhibit-5 is also
a pathological report that was not prepared
in her presence. She cannot say who
prepared it at PMCH.
4. No injury was found on other parts of the
body. It is not true that her examination
report is flawed.
26. It would be apposite to reproduce para
nos. 7, 8, 9 and 10 of the Pradeep’s case (supra),
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
29/40
which reads as under:-
“7. We have carefully considered the
submissions. The fate of the case depends on the
testimony of the minor witness Ajay (PW-1).
Under Section 118 of the Evidence Act, 1872 (for
short, “the Evidence Act”), a child witness is
competent to depose unless the Court considers
that he is prevented from understanding the
questions put to him, or from giving rational
answers by the reason of his tender age. As
regards the administration of oath to a child
witness, Section 4 of the Oaths Act, 1969 (for
short “Oaths Act”) is relevant. Section 4 reads
thus:
“4. Oaths or affirmations to be made by
witnesses, interpreters and jurors.–(1) Oaths
or affirmations shall be made by the following
persons, namely:–
(a) all witnesses, that is to say, all persons who
may lawfully be examined, or give, or be required to
give, evidence by or before any court or person having
by law or consent of parties authority to examine such
persons or to receive evidence;
(b) interpreters of questions put to, and
evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under
twelve years of age, and the court or person having
authority to examine such witness is of opinion that,
though the witness understands the duty of speaking
the truth, he does not understand the nature of an oath
or affirmation, the foregoing provisions of this section
and the provisions of Section 5 shall not apply to such
witness; but in any such case the absence of an oath or
affirmation shall not render inadmissible any evidence
given by such witness nor affect the obligation of the
witness to state the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. ..”
8. Under the proviso to sub-Section (1) of Section 4, it
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
30/40
is laid down that in case of a child witness under 12
years of age, unless satisfaction as required by the said
proviso is recorded, an oath cannot be administered to
the child witness. In this case, in the deposition of PW-
1 Ajay, it is mentioned that his age was 12 years at the
time of the recording of evidence. Therefore, the
proviso to Section 4 of the Oaths Act will not apply in
this case. However, in view of the requirement of
Section 118 of the Evidence Act, the learned Trial
Judge was under a duty to record his opinion that the
child is able to understand the questions put to him and
that he is able to give rational answers to the questions
put to him. The Trial Judge must also record his opinion
that the child witness understands the duty of speaking
the truth and state why he is of the opinion that the
child understands the duty of speaking the truth.
9. It is a well-settled principle that corroboration of the
testimony of a child witness is not a rule but a measure
of caution and prudence. A child witness of tender age
is easily susceptible to tutoring. However, that by itself
is no ground to reject the evidence of a child witness.
The Court must make careful scrutiny of the evidence
of a child witness. The Court must apply its mind to the
question whether there is a possibility of the child
witness being tutored. Therefore, scrutiny of the
evidence of a child witness is required to be made by
the Court with care and caution.
10. Before recording evidence of a minor, it is the duty
of a Judicial Officer to ask preliminary questions to him
with a view to ascertain whether the minor can
understand the questions put to him and is in a position
to give rational answers. The Judge must be satisfied
that the minor is able to understand the questions and
respond to them and understands the importance of
speaking the truth. Therefore, the role of the Judge
who records the evidence is very crucial. He has to
make a proper preliminary examination of the minor by
putting appropriate questions to ascertain whether the
minor is capable of understanding the questions put to
him and is able to give rational answers. It is advisable
to record the preliminary questions and answers so that
the Appellate Court can go into the correctness of the
opinion of the Trial Court.”
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
31/40
27. It would be apposite to reproduce para
nos. 11 and 12 of the Panchhis’s case (supra), which
reads as under:-
“11. Shri R.K. Jain, learned
Senior Counsel, contended that it is very
risky to place reliance on the evidence of
PW 1, he being a child witness. According
to the learned counsel, the evidence of a
child witness is generally unworthy of
credence. But we do not subscribe to the
view that the evidence of a child witness
would always stand irretrievably
stigmatized. It is not the law that if a
witness is a child, his evidence shall be
rejected, even if it is found reliable. The law
is that evidence of a child witness must be
evaluated more carefully and with greater
circumspection because a child is
susceptible to be swayed by what others tell
him and thus a child witness is an easy prey
to tutoring.
12. Courts have laid down
that evidence of a child witness must find
adequate corroboration before it is relied
on. It is more a rule of practical wisdom
than of law (vide Prakash v. State of M.P.
Baby Kandayanathil v. State of Kerala; Raja
Ram Yadav v. State of Bihar and Dattu
Ramrao Sakhare v. State of Maharashtra.”
28. For the sake of convenience or for the
better understanding of the fact, it is apposite to
reproduce the provision of Sections 164A and 53A of the
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
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Cr.P.C., which is as under:-
“Section 164 A Medical
Examination of the victim of rape
[1] Where, during the stage
when an offence of committing rape or
attempt to commit rape is under
investigation, it is proposed to get the
person of the woman with whom rape is
alleged or attempted to have been
committed or attempted, examined by a
medical expert, such examination shall be
conducted by a registered medical
practitioner employed in a hospital run by
the Government or a local authority and in
the absence of such a practitioner, by any
other registered medical practitioner, with
the consent of such woman or of a person
competent to give such consent on her
behalf and such woman shall be sent to
such registered medical practitioner within
twenty-four hours from the time of
receiving the information relating to the
commission of such offence.
[2] The registered medical
practitioner, to whom such woman is sent
shall, without delay, examine her person
and prepare a report of his examination
giving the following particulars, namely–
(i) the name and address of
the woman and of the person by whom she
was brought;
(ii) the age of the woman;
(iii)the description of material
taken from the person of the woman for
DNA profiling;
(iv) marks of injury, if any,
on the person of the woman;
(v) general mental condition
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
33/40of the woman; and
(vi)other material particulars
in reasonable detail,
[3] The report shall state precisely the
reasons for each conclusion arrived at.
[4] The report shall specifically record that
the consent of the woman or of the person
competent, to give such consent on her
behalf to such examination had been
obtained.
[5] The exact time of commencement and
completion of the examination shall also be
noted in the report.
[6] The registered medical practitioner
shall, without delay forward the report to
the investigating officer who shall forward it
to the Magistrate referred to in section 174
as part of the documents referred to in
clause (a) of Sub-Section (5) of that
section.
[7] Nothing in this section shall be
construed as rendering lawful any
examination without the consent of the
woman or of any person competent to give
such consent on her behalf.”
Section 53 A Examination of person
accused of rape by medical practitioner
[1] 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 Government or by a local
authority and in the absence of such a
practitioner within the radius of sixteen
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
34/40
kilometers 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 a 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.
[2] The registered medical practitioner
conducting such examination shall, without
delay, examine such person and prepare a
report of his examination giving the
following particulars, namely;
[i] the name and address of the accused
and of the person by whom he was
brought,
[ii] the age of the accused,
[iii] marks of injury, if any, on the person
of the accused,
[iv] the description of material taken from
the person of the accused for DNA profiling,
and”.
[v] other material particulars in reasonable
detail.
[3] The report shall state precisely the
reasons for each conclusion arrived at.
[4] The exact time of commencement and
completion of the examination shall also be
noted in the report.
[5] The registered medical practitioner
shall, without delay, forward the report of
the investigating officer, who shall forward
it to the Magistrate referred to in section
173 as part of the documents referred to in
clause (a) of Sub-Section (5) of that
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
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section.”
29. Upon the aforesaid discussed
evidence, the most non-convincing fact regarding
occurrence, which appears that PW-5, who claims
herself to be an eye-witness of the occurrence found
appellant inserting his penis inside the urethra of the
victim. Prior to her entering to the room, PW-
3/mother of victim already came there and seeing
her, victim started to shout, and came to her. The
deposition of PW-5 appearing false on its face and
appears to be stated only to aggravate the allegation
to establish assault under the category of penetrative
sexual assault. PW-3 entered room before entering of
PW-5 but she did not find appellant in the position as
it was narrated by PW-5. It appears from the
deposition of PW-2, who is none but the father of the
victim and a land broker that there is no mobile with
her wife and, therefore, the testimony of PW-3 as to
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
36/40
inform the occurrence with her mobile phone is
appearing also contradictory. The author of FIR
(Exhibit-1) is PW-3 herself that when she found
appellant doing some wrong work with her daughter,
she shouted, whereafter PW-5 came over there and
caught appellant while running away from there. This
version also cast a doubt over testimony of PW-5, as
discussed above.
30. Admittedly, no cloth of victim or
appellant was seized. Nothing objectionable was found
at place of occurrence by Investigating Officer (PW-
1). It appears from the deposition of PW-2 that
occurrence was reported to police by him, which
further creates a doubt regarding claim of PW-3, as
she informed the police regarding occurrence.
31. From the perusal of record, it also
appears that the parents of victim including victim
herself consistently deposed that on the date of
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
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occurrence, the age of victim was about six years,
whereas, she found upon radiological examination
somewhere between 12-13 years, almost double to
her age. If this version of the victim and prosecution
witnesses i.e. PW-2 and PW-3 be accepted regarding
age i.e. of six years old, it appears almost impossible
to commit a penetrative sexual assault in standing
position as deposed by PW-5, where the age of
appellant was about 21 years, who was a full grown
adult. Height of victim as per medical report, appears
4 ft. where appellant was 21 years old, full grown
adult, it appears almost impossible to stand with
victim in position by inserting penis in urethra of the
victim as deposed by PW-5. Moreover, the appellant
was apprehended on spot as per the case of
prosecution, he was medically examined as per
version of PW-1/I.O. of this case but his medical
examination was not brought on record, which may be
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
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a good corroborative piece of evidence. Hence, from
the aforesaid discussions of the evidence, it appears
that prosecution failed to established the allegation of
“penetration as to any extent” to bring an offence
within the meaning of Section 3 of the POCSO Act.
When the “allegation of “Penetration” appears
doubtful, the conviction under Section 4 or 6 of the
POCSO Act cannot be said to be proved, the
conviction under Section 6 of the POCSO Act for
aggravated penetrative sexual assault also appears
doubtful in view of radiological examination of the age
of victim, where she found between 12-13 years,
contrary to her age six years as deposed by PW-2 and
PW-3. No school certificate was brought on record
despite of the fact that victim herself claimed to be
regular student of a school located at Bihta.
32. Interestingly, son of the informant who
was also taking tuition from appellant was not
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
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examined, who could be a best witness otherwise.
Moreover, it was stated by PW-3 that appellant was
giving tuition to victim since last three years, whereas
victim deposed that she was taking tuition since last
four months only.
33. In view of above, it can be said safely
that prosecution failed to established the foundational
aspects of the crime in question as to import the
presumption available under Sections 29 and 30 of
the POCSO Act.
34. Hence, appeal stands allowed.
35. Accordingly, the impugned judgment
dated 02.12.2022 and the impugned order of sentence
dated 05.12.2022 passed by the learned Additional
District and Sessions Judge VII-cum-Exclusive Special
Judge (POCSO Act), Patna, in CIS No. Special (POCSO)
Case No. 30 of 2019, arising out of Bihta P.S. Case No.
214 of 2019 is hereby set aside/quashed.
Patna High Court CR. APP (SJ) No.640 of 2023 dt.30-10-2024
40/40
36. Appellant namely, Amit Kumar is in
custody in connection with this case, he is directed to be
released forthwith, if not required in any other case.
37. Fine, if any, paid be returned to the
appellant immediately.
38. Office is directed to send back the trial
court records along with a copy of this judgment to the
trial court, forthwith.
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR AFR CAV DATE 17.10.2024 Uploading Date 30.10.2024 Transmission Date 30.10.2024