Deepak vs State CRLSJ 1011/22 29/03/23 [ ALOK JJ ] [ PATNA HIGH COURT ]

• Sections 366A, 376 and 34 IPC POCSO ACT Section 4 Procuration of minor girl and rape Statement of victim cannot be trustworthy in the light of the fact adduced during evidence before the Court is quite inconsistent with the story of prosecution Her evidence does not inspire confidence and such evidence cannot be trustworthy No injury was found on victim’s body – In Doctor’s opinion on the basis of pathological and radiological findings, there is no sign of sexual assault and the age of the victim is about 17-18 years Out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence Occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station – 1.0. has not been examined – Accused entitled to benefit of doubt Conviction and sentence set aside Appeal allowed. [Paras 23, 28, 31 and 32]

31. From perusal of the FIR it is crystal clear that initial version of the prosecution story has been narrated by none else than informant who is father of the victim himself but so far as deposition of PW-9 (informant) is concerned, during cross examination informant has stated that neither he is aware of the author of the FIR nor does he know about the contents of the same then the question arises who has prepared the initial version of FIR which puts question mark on the said version of prosecution. From perusal of record it is crystal clear that out of eight factual witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in numbers) have been declared hostile and so far as PW-9 (informant) and PW-6 are concerned, they have not been declared hostile but they are not eye witness of the actual occurrence. PW-9 who is informant of the case during cross examination he has stated that he did not know who is the author of the written report and he cannot point out what is mentioned in the said written report which makes the whole prosecution story doubtful. One of the witnesses namely Md. Saheb who puts signature on written report has not been examined. Apart from the said discussions made above, story of prosecution creates doubt in light of the factthat occurrence took place on 08.06.2015 and information regarding the said occurrence was given to concerned police station on 10.06.2015 when place of occurrence is merely 2 km away from the concerned police station. He further submitted that in one column of formal FIR, there is interpolation regarding entries and no plausible explanation has been given regarding the said delay in lodging the FIR and said interpolation.

32. It is worth to note that I.O. has not been examined and contention of learned counsel of the appellant is quite sustainable in the light of the fact that on account of non examination of the investigating officer, the place of occurrence has not been identified and the veracity of the prosecution witnesses has not been tested as defence has not got opportunity to test the veracity of prosecution witnesses in the light of oral statement given before the investigating officer.

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DEEPAK KUMAR VS STATE OF BIHAR JUDGMENT PATNA HIGH COUTT

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