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Where the victim has not been brought to the witness-stand & no complaints was made of being kidnapped again,The assessment of the age of the victim assumes importance- High court of Patna 

TITLE-Police singh & others Vs The state of Bihar & others 

Decided on-06/12/2023

+CR.APP(DB) No.1015/2019

CORAM-HON’BLE JUSTICE MR.ASHUTOSH KUMAR AND 

HON’BLE JUSTICE MR.NANI TAGIA

INTRODUCTION

As the appeal has been filed to set aside the order and judgement passed by the learned Additional District & sessions Judge-I- cum- Special Judge as the Appellant has been convicted under section 366A of IPC and section 6 of POCSO ACT and has been sentenced to undergo R.I for 10 years and to pay fine 50000.

FACTS

As per the facts of the case the appellant and his associate had came to visit the house of Petitioner witness 3 house were after living their house about after half an hour Petitioner witness no.3 heard hulla that two person has kidnapped a girl.For such he along with other come out of the house and saw that his daughter was been taken away on a motorcycle by the appellant and Raja mian for which Petitioner witness no.3 along with his associates went to the house of appellant therefore suspect that his daughter has been kidnapped and was for the purpose of marriage.On basis of the aforenoted written report was initially registered for investigation for the offences under section 366A/34 of IPC and it appears that the police after investigation submitted charge sheet against the appellant and asgar mian and the case was committed to the court of sessions for trial were the trial court after having examined seven witnesses on behalf of the Prosecution has convicted the appellant as aforesaid.

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after going through the records the court only lament at the manner in which the trial court has handled the case.As no effort were made by the trial court to atleast inquired about the statements of witnesses or whether the application under section 156(3) of Crpc was acted and investigated.It was the duty of the trail court necessitated more because the victim was never produced in the witness-stand as it would raised eyebrows of any one much less of trial court.This no judging the trail court ought to have asked for explanation and only then should have taken a decision even the evidence available on record the Prosecution case appears to be tattering at the seams.The investigator gas not even stated about the victim having been taken to a judicial Magistrate for recording her statement under section 164 of Crpc and state that she has been raped by the appellant and Raja mian and as Raja Mian was neither apprehended nir any effort was made to put him to the process of law and looking into medical testimony doctor did not find any injury in the body of the victim including the private parts.No evidence of any recent sexual intercourse could be detected and also her age was detected 16 or 17 years .Juataposed with the deposition of the victim the medical testimony may not hold as much importance but in a case were victim has not been brought to the witness-stand and there is an assertion by the witness that she had been kidnapped again and no case has been lodged then the age of the assessment of the victim by the Doctor assumes importance.The victim was never kidnapped and she was only assisting her accomplice to extract money from asgar Milan who though has been convicted but has died without preferring an appeal.As petitioner witness no.2 and 3 have suggested cook and bull story to the trial court and trail court recorded the statment without putting any questions to them.The Trial court in court estimation has been reduced to a burlesque and the story of the Prosecution stands mired into deep doubt.For the reasons the judgement of the trail court us set aside and the Appellant ud acquitted of all the charges levelled against him.The appeal stands allowed.

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Written by- Prachee Novo Mukherjee

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