State Of Jharkhand vs Chandan Kumar Pandit

Heard learned Additional Public Prosecutor representing the appellant State.

State being aggrieved by the impugned judgment of acquittal dated 08.03.2018 passed by the learned 1st Additional Sessions Judge-cum-Special

Judge, Deoghar in POCSO Case No. 52/2016 arising out of Sarath P.S. Case No. 132/2016 (G.R. No. 710/2016), whereunder the sole accused /

Respondent herein, has been acquitted from the charge under sections 342 and 376 of the I.P.C. and section 4 of the POCSO Act, has preferred the

present Acquittal Appeal.

Appeal suffers with delay of 101 days, for condonation of which, an application bearing I.A. No. 9221/2018 has been preferred. Application for Leave

to Appeal under section 378(3) of the Code of Criminal Procedure, 1973 being I.A. No. 9222/2018 has also been preferred.

We have heard learned counsel for the Appellant-State on the merits of the challenge as well.

In order to appreciate the contention urged on behalf of the appellant State, brief facts of the case, as borne out from the record, are necessary to

be referred to hereunder:

The victim, a minor girl aged 13 years as found by the Medical Officer (P.W.9) Dr. Sushma Verma, put the law in motion by submitting a written

report on 15.09.2016 to the Officer-in-Charge, Sarath P.S. inter-alia alleging as follows:

She is a student of Class-VIII. Her mother has expired and her father works in Fatuha in Bihar. She lives with her grandmother. On 13.09.2016 she

had gone to the shop of Suran Pandit at 11.00 am for purchasing some household articles (i.e. 1.00 kg of potato), where her co-villager accused /

private Respondent Chandan Kumar Pandit, aged 22 years, S/o Baleshwar Pandit was found sitting inside the shop. When she reached there, the

shopkeeper came out and closed the gate of the shop and put lock from outside.

The accused Chandan Kumar Pandit thereafter closed her mouth with his hand and took her inside the inner room where she was laid on the floor.

On raising brawl, he inserted her ‘chunni’ in her mouth and committed rape upon her. After half an hour, he left her and then, Jagbandhu Pandit

opened the lock of the shop and the victim came out and went to her house and narrated the incident to her grandmother who started raising brawl.

Her father at Fatuha was informed on phone. He came to the village and after making inquiry about the incidence, case was instituted bearing Sarath

P.S. Case No. 132/2016 dated 15.09.2016 under section 376 of the I.P.C. and section 3 and 4 of POCSO Act against the sole accused Chandan

Kumar Pandit. He was charge sheeted vide Charge sheet No. 131/2016 dated 30.11.2016 under sections 376 and 511 of the I.P.C. and section 8 of

the POCSO Act. After cognizance, case was committed to the Court of learned Special Judge, POCSO Act. Charges were framed against the

accused which were read over and explained in Hindi, to which he denied and claimed to be tried.

During course of trial, prosecution examined altogether ten witnesses. P.Ws. 5, 6, 7 and 8 who were co-villagers and declared hostile by the

prosecution for not supporting the prosecution case. Amongst rest of the prosecution witnesses, P.W.4 is the prosecutrix, P.W.1 and 3 are the father

and grandmother of the victim and P.W.2 is the uncle of the victim and P.W.9 is the lady doctor who conducted medical examination of the victim girl

on 15.09.2019. P.W.10 is the Investigating Officer of the case.

After closure of the prosecution evidence, statement of the accused was recorded under section 313 of the Cr.Pc where he denied his involvement

in the crime and claimed himself to be innocent. Learned Trial Court on consideration of the evidence on record and submissions of the parties, was

pleased to acquit the sole accused for the charges inter-alia, holding that there are major contradiction in the statement of the material witnesses,

particularly that of the victim and her grandmother. These contradictions are found on the major issue regarding existence or non-existence of injury

both externally or internally on the private parts of the victim. Learned Trial Court also took note of the evidence of the grandmother of the victim that

on earlier occasions also, cases were instituted between the grandmother of the victim girl and the father of the accused. Parties were on inimical

terms and father of the accused had been assaulting and torturing her for the last 20 years. Therefore, false implication cannot be ruled out. Learned

Trial Court also considered that out of ten prosecution witnesses adduced, four of them have turned hostile and the remaining four are the victim, her

grandmother, father and uncle who are related witnesses. No one from outside family has supported the case of the prosecution. The medical

evidence also shows that spermatozoa was not found after forensic examination and vaginal orifice admitted tip of the finger tightly. Age of the victim

girl was assessed as 13 years. Absence of any internal injury on private parts of the victim girl made the allegation unbelievable as the prosecutrix has

alleged that the accused, a major boy of 22 years, had raped her for half an hour. Learned Trial Court also found that during the deposition, victim had

stated that the accused had opened her clothes, but in her crossexamination, she has stated that when she resisted the act of the accused, he tore her

clothes. Statement of the grandmother of the victim girl also contradicted the statement of the victim as her grandmother had stated at para-15 of her

cross-examination that the victim had come to her covering her face with ‘Chunni’, whereas ‘Chunni’ was left in the shop. P.W.10

Investigating Officer has nowhere stated that any material exhibit was given to him by the victim. Learned Trial Court has accordingly acquitted the

accused on being satisfied that the prosecution has failed to prove the charge beyond shadow of all reasonable doubt.

Learned counsel for the State has sought Leave to Appeal inter-alia on the following grounds:

It is his contention that in a case of rape and offence under POCSO Act, statement of the victim / prosecutrix, if consistent and reliable, can be made

the sole basis for conviction. Absence of external or internal injury in the findings of the Medical Officer do not completely overrule the ocular

testimony of the prosecutrix herself. Girl is aged 13 years and sexual assault was committed by the accused, a major boy of 22 years old. Therefore,

she could not have strongly resisted the act. The incidence was initially reported to her grandmother by the victim and only after father of the victim

came from Fatuha in Bihar, FIR was instituted two days thereafter. Delay, if any, in institution of the FIR has also been adequately explained. Delay

in conducting medical examination of the victim may have been the reason for not finding presence of spermatozoa in the vaginal swab. Learned Trial

Court has erroneously discarded the evidence of the prosecutrix whose version is supported by P.W.1, father, P.W.3 grandmother and P.W.2 her

uncle. Learned Trial Court has also not discussed the evidence of the Investigating Officer. As such, the impugned judgment requires reconsideration

by the Appellate Court in appeal. Therefore, appellant has made a good case for grant of Leave to Appeal.

We have given anxious consideration to the submission of the learned counsel for the State that the case alleges commission of rape upon a minor girl

aged 13 years under the provisions of Indian Penal Code and also under POCSO Act. The legal proposition in this regard is also borne in mind that in

case of rape, the prosecutrix is not considered as an accomplice and her testimony if consistent and reliable and are supported by the medical

evidence, is sufficient to hold the accused guilty of the charge. Keeping such proposition of law in mind, when we notice the evidence on record and

findings of the learned Trial Court based on it, we find that the prosecution had adduced altogether ten witnesses. P.W.1, father, P.W.2 Uncle and

P.W.3 grandmother of the victim are prosecution witnesses, who have supported the prosecution case while other co-villagers P.Ws. 5, 6, 7 and 8

have been declared hostile for not supporting the case of the prosecution. Father of the victim was at Fatuha in Bihar at the date and time of

occurrence and he could depose only as far as the victim narrated the prosecution story to him. P.W.3 is the grandmother of the victim to whom

P.W.4, victim claims to have narrated the incidence. Essentially, the case of the prosecution hinges upon the testimony of P.W.4 prosecutrix, her

grandmother and the medical evidence in the nature of medical report of P.W.9 Dr. Sushma Verma who has examined the victim girl on 15.09.2016

i.e. two days after the occurrence. During the course of trial, certain documentary evidence was also adduced by the prosecution which are FIR,

written report (Ext.1), statement of the victim recorded before the Judicial Magistrate, Deoghar on 29.11.2016 (Ext.2) and the medical report proved

by the doctor (P.W. 9) marked as Ext.3. Learned Trial Court while considering the evidence of the prosecutrix as well as the medical evidence, has

taken note of serious contradiction in the statement of the prosecutrix who claims to have suffered bruise injuries on her elbows during commission of

rape. The medical evidence shows that no external or internal injuries were found on her private part and vaginal orifice only admitted tip of the finger

tightly and vaginal swab sent for pathological examination found absence of Spermatozoa. Upon pathological examination, victim was assessed to be

13 years of age and as per the opinion of the doctor, no definite opinion could be given whether she was raped or not. However, according to the

findings recorded by the Medical Officer, probably she is not matured enough for sex. The prosecutrix in her statement under section 164 of the

Cr.Pc, copy of which has been produced for our perusal by the learned counsel for the State, she has categorically stated at paragraph-5 that she was

raped for half an hour. During her deposition in Court at paragraph-16, she had stated that she resisted during commission of rape and suffered bruise

injury on both elbows and face which was swollen and she had shown elbows and face to the doctor who examined her. However, no such injury was

found by the doctor (P.W.9) on the body of the victim. From the statement of the grandmother (P.W.3) during trial, it has transpired that there were

instance of cases filed earlier due to enmity with the father of the accused namely Baleshwar Pandit. These major contradictions in the statement of

the victim visà -vis medical evidence persuaded the learned Trial Court to disbelieve the credibility of the prosecutrix as a reliable and trustworthy

witness upon whose testimony, conviction for a serious offence of rape under section 376 of the I.P.C. and section 4 of the POCSO Act could not be

recorded.

Upon careful scanning of the material evidence, as discussed by the learned Trial Court, we are of the considered opinion that the appellant / State

has not been able to make out any good ground for grant of Leave to Appeal in terms of section 378(3) of the Cr.Pc against the impugned judgment of

acquittal, which is well-reasoned and based upon proper appreciation of evidence. Having said so, we do not find any purpose for condoning the delay

of 101 days in preferring the instant Memo of Appeal. Accordingly, I.A. No. 9221/2018 for condonation of delay of 101 days is dismissed. I.A. No.

9222/2018 seeking Leave to Appeal is also dismissed. Consequently, the instant Acquittal Appeal stands dismissed.