The State of Bihar v. Arvind Kumar @ Raj Singhania

Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 of her mother and she got her pregnancy tested wherein the pregnancy was confirmed. The alleged act were being done under threat showing a knife. The written complaint, registration of the case by officer-in-charge of Mahila Police Station and formal FIR are Exhibit 2, 2/1 and 3 respectively.

8. The case was investigated, I. O. submitted a chargesheet against both the accused under Sections 376, 376(B), 504, 506, 354(D), 120(B) of IPC and under Sections 4, 6 and 12 of POCSO Act. Cognizance was taken and after hearing the parties charges were framed against both the accused persons which were read over and explained to them in Hindi for the offences under Sections 120(B), 376(DB), 504, 506 IPC and Section 6 of POCSO Act. The accused persons pleaded not guilty and claimed to be tried.

9. The accused persons claimed that they have committed no offence and have been falsely implicated in this case. It was also submitted as a defence that the victim was not a student of school in question and that there was some transaction of money in between the mother of the victim and the accused Arvind Kumar. By way of defence it was also suggested that due to non-payment of school fee by the parents of the victim a dispute arose which led to lodging of this false case. Patna High Court D. REF. No.3 of 2021 dt.19-10-2022

10. On behalf of the prosecution following witnesses were produced:- (1) PW 1- Maternal uncle of the victim, (2) PW 2 – The victim herself, (3) PW 3- The mother of the victim, (4) PW 4- The father of the victim, (5) PW 5- Ravi Ranjana Kumari, S.I. of Police -cum- I.O. of this case, (6) PW 6- Dr. Amita Singh (one member of the Medical Board who had examined the victim). The following documentary evidences were brought on record on behalf of the prosecution:- (1) Exhibit 1- Signature of victim on the statement u/s 164 Cr.P.C. recorded by learned Judicial Magistrate, (2) Exhibit 2- written report, (3) Exhibit 2/1 – registration of case by the Officer-in- charge-cum-S.H.O. Mahila Police Station, (4) Exhibit 3 – Formal FIR, (5) Exhibit 4- Seizure list, (6) Exhibit 5- forwarding letter for examination of D.N.A. Test to the Forensic Science Laboratory, Patna, Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 (7) Exhibit 5/1- Serum of the chorionic Villi of baby, Forensic Laboratory, Patna, (8) Exhibit 6- Medical Report, (9) Exhibit 7- Medical Report, (10) Exhibit 8- Birth Certificate issued by the Govt. of Bihar, Department of Planning and Development, (11) Exhibit 9 – Report of the Diector, Forensic Science Laboratory, Bhar, Patna regarding genetic D.N.A. Test. The defence examined the following witnesses:- (1) DW 1- Sarvjeet Kumar (own brother of accused Arbind Kumar), (2) DW 2 -Baijnath Singh (father of Arvind Kumar) (3) DW 3- Shalu Kumari (sister of Abhishek Kumar), (4) DW 4 – Upendra Kumar.

11. The defence brought on record the Admission-cum- Registration Forms related to New Central Public High School, Kisan Colony, Phase I, Anishabad of the victim and Shaijal Kumari which is dated 01.11.2017 marked as Ext. A, B, C and B/1. Two photographs of Aadhar Card have been brought on record by defence of the victim and Saijal Kumari which has been marked as Ext. ‘X’ and ‘X/1’. Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 Findings of the Trial Court

12. The learned trial court analysed the evidence of the victim (PW 2) who disclosed her age in her examination-in-chief as 11 years. In course of her cross-examination, the defence did not put any question to her challenging her age. The learned trial court, therefore, held that at the time of occurrence the victim’s age was 11 years. It was further held that the accused Abhishek Kumar was sending her in the room of the Principal on the pretext to examine her handwriting but there, in the room, the Principal was committing rape on her and this was done for 5-6 times. This act of heinous nature led to the pregnancy of the victim girl. She was treated at PMCH, Patna and her pregnancy was terminated by the doctors.

13. PW 1 who is the maternal uncle of the victim deposed that he came to the house of the victim where he knew about the alleged occurrence from the victim as well as from her mother.

14. PW 3 who is the mother of the victim has stated that her daughter aged about 11 years was a student of standard V at the New Central Public School, Patna. She alleged that the Head Master of the said school and Abhishek Kumar who was a teacher on the pretext of checking handwriting was sending her daughter Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 in the room of the Principal. She has stated that the Principal was committing rape with her daughter and Abhishek Kumar was vigilant at the door of the Principal’s room. She has stated that the victim narrated her all episodes and stated that the Principal was committing rape upon her and he was giving threatening to chop the head of his brother. She has stated that she get the pregnancy test done by pregnancy kit and result was found positive, thereafter she went to the police station Phulwarisharif from where she was sent to Mahila police station. She had given a written petition, the petition was written by one Himanshu Kumar, she had put her signature. She proved the written report as Exhibit ‘3’.

15. This witness was suggested in paragraph ‘3’ of her deposition that the age of the victim girl is more but suggestion was denied by PW 3. The defence lawyer brought two photocopies of Aadhar cards and one of them was identified by PW 3 as that of the victim girl whereas the second one was of her second daughter. Both the photocopies of Aadhar cards were marked as ‘X’ and ‘X/1’ for identification.

16. PW 4 who is the father of the victim girl also supported the prosecution case. He also deposed that her daughter was a student of New Central Public School in standard V and her age was 11 years. He stated that the victim was always going for Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 tuition at evening time and the Principal committed rape on her. Learned trial court has recorded that no question was put to this witness on the point of age of the victim girl. PW 4 denied the suggestion that there was any dispute over the payment of school fee. He has stated that after taking a written acknowledgment on a stamp paper, his wife had given a sum of Rs.1 lakh to the accused Arvind Kumar. He has further stated that Arvind Kumar often return the said amount to her. In paragraph ‘31’ of his evidence, he has stated that his children studied in several schools because of changing of residence. The defence did not put any question to this witness on the point of the age of the victim girl.

17. PW-5 Ravi Ranjana Kumari, the I.O. of this case had visited the place of occurrence along with the victim girl, her mother, Jugeshwar Kumar and Rajesh Kumar. She had seized three mobile phones, one school register and one knife and prepared the seizure list. She has proved the seizure list as Exhibit-4. She got collected the blood sample of the two accused (Exhibit-A and Exhibit-B) and she has further proved the forwarding letter (Exhibit-5). She has further stated to have collected the serum of chorionic villus sample for paternity test and sent all the blood samples of the accused persons and victim to the Forensic Science Laboratory, Patna for examination. This letter has been marked as Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 Exhibit-5/1. She has stated that the examination of victim was done in the local hospital as well as in the PMCH, Patna. She further stated that all the recovered material exhibits as per seizure list had been kept in the police malkhana. In cross-examination, I.O. (PW 5) has stated in paragraph-33 of her deposition that she had not got any documentary proof showing that the victim was studying in New Central Public School. She had not examined any of the neighbours in the boundary of the School. She had not investigated as to in how many rooms the school is running. She had not recorded this in the case diary. She had not recorded the statement of the seizure list witnesses in the case diary and seizure list witnesses were not made chargesheet witness. In paragraph-49 of her evidence, she has stated that it is SR case and this type of case is required to be supervised by Dy.S.P. or the Officers above him. She has not stated in the case diary that this case was sent for supervision and no supervision note of Senior Police Officer is recorded in the case diary. No guideline/instruction was received from the senior Officers prior to the filing of the chargesheet and she has stated that she had filed chargesheet without any instruction from senior officer as 60 days period is going to expire. Patna High Court D. REF. No.3 of 2021 dt.19-10-2022

18. The defence suggested in paragraph-53 that if someone had 14 teeth on the upper lower side both then the said person will be treated major. In paragraph-56 of her evidence, this witness was suggested that from her physical appearance itself the victim looks major, therefore, the I.O. had not recorded anything about the brothers and sisters of the victim and their statements were not recorded. In paragraph-57 of the deposition, the I.O. denied the suggestion that because the victim was major, therefore, the date of birth certificate was not taken either from the earlier school or from the present school.

19. PW-6 is the Medical Officer who was posted at Gardhanibagh Hospital, Patna on 20.09.2018. On that day, a Medical Board was constituted to examine the victim girl. The victim girl was brought by S.I. Ravi Ranjana Kumari (PW-5) and ASI, Sangeeta Kumari. She had examined the victim girl. In the pregnancy test she was found positive. Her last mensuration was on 08.08.2018. No sign of violence was found on her private parts. Vagina admits two fingers, vaginal swab was taken on slide and sealed and sent to Pathology Department, PMCH for determination of spermatozoa. For age determination, the victim was sent with Constable to Radiology Department, PMCH Patna. PW-6 found that for confirmation of pregnancy ultrasonography of Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 lower abdomen was to be done. Opinion was reserved till reports are received from PMCH. She has proved the report prepared at Gardanibagh Hospital as Exhibit-6. PW-6 has further perused the radiological, pathological and ultrasound report of the victim and found that according to the report, age of the victim is between 13- 14 years. This report has been marked as Exhibit-7. In paragraph- 20 of her evidence, she has stated that when the victim was brought to her, she has physically examined her and found that she had 14 teeth on both upper and lower sides. She has stated that upper jaw has four incisor, two canine, four pre-molar and six molars in the upper side. These are the characteristics of being Major.

20. In paragraph ‘24’, she has stated that first molar comes out at the age of 6 years. Second molar comes at the age of 12 years whereafter the third one comes out at the age of 25 years which is wisdom tooth. The victim was not having the third molar. In paragraph ‘26’ PW 6 states that without ossification test, she cannot give any opinion. In paragraph ‘38’, she has stated that as per 20.09.2018 report, victim was sent to PMCH Radiology Department for age determination. The said report was received on

03.11.2018 but it was not sent to the court. She had got a copy of the same. The said report was not sent to the I.O. PW 6 has further Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 stated that in this case, no DNA test has been done for parental finding and the I.O. had not sent the victim girl for parental finding. PW 6 had not received any DNA test report, parental finding and forensic science report.

21. On behalf of the defence, DW 1 deposed that accused Arvind Kumar is his brother, the victim girl was studying in New Central Public School situated in Kisan Colony Phase-I, Anisabad which is within the jurisdiction of Gardhanibagh police station. The said school is operated by one Ramjee Paswan. According to this witness because the name of school is common, therefore, the police has arrested Arvind Kumar. In his school students up to class III and IV are only taught.

22. DW 2 has also deposed on similar lines. He has proved Exhibit A, B, B/1 and C. Exhibit A is the school registration-cum-admission form of the victim girl which bears the signature of her father. Signature of her father has been marked as Exhibit B. The date of birth of the victim girl mentioned on the said form is 12.07.2000 showing that she was a student of class VIII in the academic session 2017-18. The second certificate is of the sister of the victim which bears the signature of her sister and father and both have been marked as Exhibit ‘C’ and ‘B/1’ respectively. Patna High Court D. REF. No.3 of 2021 dt.19-10-2022

23. DW 2 has been cross-examined at length on behalf of the prosecution. He has been suggested that the registration- cum-admission form is a forged and fabricated document. The said school registration form did not bear the seal of the school and signature of the Head Master or any Employee.

24. DW 3 is the sister of accused Abhishek Kumar who has stated that the victim and her sister were not studying in the New Central Public School and her parents were never seen going to the school.

25. DW 4 claims that his daughter was studying in New Central Public High School, Kisan Colony, Phase-I, Anisabad which is running in the house of one Manohar Rai and school was operated by Ramjee Paswan. Principal of the said school is Sanjay Kumar @ Raj Singhania. He has stated that he knew the informant and her daughter. The informant was coming to the school because her daughter was studying there. He denied the suggestion that there is no school in the name of New Central Public High School and there is no one like Ramjee Paswan who is operating the said school.

26. After the examination of the witnesses, statements of the accused were recorded under Section 313 Cr.P.C. The Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 questions put to the accused in course of their statements which are being reproduced hereunder: “iz”u % D;k vkius vfHk;kstu dk lk{; lquk\ mRRj % th gk¡A iz”u % vkids fo:) vfHk;kstu dk lk{; gS fd vkius ihfM+rk dks vjfoUn dqekj mQZ jkt flagkfu;k ds U;w lsUV~y ifCyd Ldwy fLFkr :e esa gs.M jkbfVax psd djkus ds cgkus Hkstk Fkk] D;k dguk gS \ mRrj % ;g >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g lk{; gS fd vki ihfM+rk dks vjfoUn dqekj mQZ jkt flagkfu;k ds U;w lsUV~y ifCyd Ldwy fLFkr :e esa gS.M jkbfVax psd djkus ds cgkus Hkstk djrs Fks vkSj [kqn njokts ds ckgj [kM+s gksdj fuxjkuh fd;k djrs Fks] D;k dguk gS\ mRrj % ;g >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g lk{; gS fd vkius vjfoUn dqekj mQZ jkt flagkfu;k ds lkFk feydj ihfM+rk dk “kkjhfjd “kks’k.k fd;k gS] D;k dguk gS\ mRrj % ;g xyr gSA iz”u % vkids lQkbZ esa dqN dguk gS\ mRrj % eSa funksZ’k gw¡A iz”u % D;k vkius vfHk;kstu dk lk{; lquk\ mRrj % gk¡ lwuk gSA iz”u % vkids fo:) vfHk;kstu dk lk{; gS fd vkius ihfM+rk ds tUefnu 12 twu ds 10 fnu ckn mls fxQ~V ds rkSj ij diM+k fn;k Fkk rFkk dIkM+k nsrs le; ihfM+rk dh ckWg dks Vp fd;k Fk] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g lk{; gS fd ihfM+rk viuh ek¡ ds dgus ij tc vkidks diM+k ykSVkus x;h rc Hkh vkius ihfM+rk dh ckWg dks Vp fd;k Fkk] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g Hkh lk{; gS fd tc ihfM+rk vkids U;w lsUV~y ifCyd Ldwy fLFkr :e esa gS.M jkbfVax Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 psd djkus vk;h Fkh rks vkius :e dk njoktk can dj mldk eqWg nck fn;k rFkk mlds lkFk xyr dke fd;k vkSj bl Øe esa mldk fofM;ksa cuk;k vkSj fQj bl fofM;ks dks ihfM+rk dks Hkh fn[kk;k] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g Hkh lk{; gS fd vkius ihfM+rk dks pkdw fn[kkrs gq, cksyk fd ml pkdw ls rqEgkjs HkkbZ dks dkVdj t+ehu esa xkM+ nwWxk vkSj vxj rqe eq>s ugha djus nksxh rks rqEgkjh tqM+ok cgu ds lkFk Hkh ;gh d:Wxk vkSj bl rjg vkius mls :e esa cqykdj 5&6 ckj mldk cykRdkj fd;k] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g Hkh lk{; gS fd tc ihfM+rk dk CyhfMax gksus yxk rks vkius mls nok f[kykdj vius U;w lsV~y ifCyd Ldwy fLFkr dejs esa vkjke djus dks dgk vkSj tc NqV~Vh dk le; gqvk rks mlds HkkbZ ds lkFk xkM+h ls ?kj igqWpok fn;k] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkids fo:) vfHk;kstu dk ;g lk{; gS fd vkius vius lg;ksxh vfHk’ksd ds lkFk feydj ihfM+rk dk “kkjhfjd “kks’k.k fd;k ftlls og xHkZorh gks x;h vkSj varr% mldk xHkZikr djkuk iM+k] D;k dguk gS\ mRrj % ;g lc >wB gSA iz”u % vkidks lQkbZ esa dqN dguk gS\ mRrj % eq>s ‘kM~;a= ds rgr QWlk;k x;k gSA”

27. Learned trial court came to the conclusion that at the time of occurrence the age of the victim was 11 years. For this finding, the learned trial court has relied upon the statement of the prosecution witnesses supported by Exhibit ‘8’ which is the date of birth certificate prepared by Registrar, Department of Planning and Development, District-Nalanda, State of Bihar. According to the learned trial court, these are oral and documentary evidences Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 which show that at the time of occurrence, the victim was aged about 11 years.

28. The learned trial court took note of the fact that the I.O of this case claims to have seized the knife on the place of occurrence where the rape was being committed by the accused Arvind Kumar on the victim in connection with which the seizure list Exhibit ‘4’ has been proved but unfortunately in course of trial the seized materials- knife, mobile phones and school registers were not brought on the record by the prosecution. The learned trial court held that when attention of the prosecution was drawn and the said knife, mobile phone and school registers have been called for as per Section 165 of the Evidence Act, the seized materials were produced before the court but having said so learned trial court has further recorded that the prosecution has not called for the said material at the time of examination of prosecution witnesses which shows that the I.O. of this case had not produced the said seized materials at the time of remand of the accused persons. The learned trial court held that the prosecution has successfully proved the offence under Section 376(DB) of the IPC and Section 6 of the POCSO Act, 2012 against both the accused persons in furtherance of common intention of both the accused with criminal conspiracy. So offence under Section 120B Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 IPC is also proved. The rape was being committed by accused Arvind Kumar on the point of knife with fear that if the victim would tell this occurrence to any person, accused would chop the head of his brother and bury her in the land. So offence under Section 506 IPC has also been proved against the accused Arvind Kumar. Submission on behalf of the appellants

29. Mr. Baxi S.R.P. Sinha, learned Senior Counsel for the appellants in both the appeals has assailed the impugned judgment of conviction and order of sentence on the ground that for conviction under section 376(DB) IPC the prosecution had a duty to prove beyond all reasonable doubt that the victim girl is aged below 12 years. In this case, according to learned Senior Counsel the prosecution has not proved the age of the victim girl and as per the evidence of the Medical Officer (PW 6), the victim was aged between 13-15 years. It is stated that after the last witness in this case had already been examined, Exhibit ‘8’ was brought on record by the prosecution and the same has been admitted in evidence with objection without there being any tender of document by any witness.

30. It is further submitted that in this case, the only eye witness is the victim herself. As regards the involvement of Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 accused Abhishek Kumar, she has only stated that Abhishek had sent her to the room of the Principal for writing check. She has not stated that Abhishek Kumar was doing this repeatedly or that he was vigilant there at the door. She has not stated that after the alleged occurrence for the first time when she was again called by the Principal in his room, she had shown any reluctance. It is stated that the act of Abhishek in sending the victim girl to the room of the Principal cannot be said to be in furtherance of common object much less any common intention. It is, thus, submitted that the evidence of PW 3 is only a hearsay witness by way of improvement and it would not safe to rely upon the exaggerated version of PW 3. She has not supported by the victim (PW 2) on the point that accused Abhishek Kumar was sending the victim girl to the room of the Principal and was himself standing outside the door keeping a vigil over the same.

31. Learned Senior Counsel, therefore, submits that the conviction of both the accused under Section 376(DB) of the IPC cannot be sustained.

32. As regards the conviction of the appellants under Section 6 of the POCSO Act, learned Senior Counsel submits that Section 6, as it stood on the alleged date of occurrence, provided a punishment of not less than ten years but may extend to Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 imprisonment for life and shall also be liable to fine. So far as Abhishek is concerned, he cannot be convicted even under Section 6 of the POCSO Act because admittedly he is not indulged in commission of any penetrative sexual act.

33. Mr. Rajesh Singh, learned Senior counsel while appearing as Amicus Curiae has submitted that the prosecution has proved the age of the victim girl approximately 11 years by adducing oral evidence and in this connection, the evidence of PW-1, PW-2 and PW-3 may be seen. It is submitted that the defence did not put any question to PW-1 and PW-2 to challenge the age of the victim disclosed by them. It is stated that though in course of cross-examination, PW-3 was challenged on the point of age of the victim girl but nothing substantial could be extracted from PW-3. It is stated that the date of birth certificate brought on record as Exhibit ‘8’ is a public document and no fault may be found with the approach of the learned trial court in taking Exhibit ‘8’ on the record.

34. Contrary to the stand of Mr. Rajesh Singh, learned Senior counsel, Ms. Surya Nilambari, learned Advocate has vehemently submitted that in this case, the prosecution has miserably failed to prove the age of the victim girl being below twelve years. It is her submission that the burden to prove each Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 and every ingredient of an offence rests entirely upon the prosecution. In the offence covered by the IPC, there is no question of presumption of guilt on prima-facie case, as contained in the POCSO Act. According to learned counsel, on the age of the victim, the prosecution has brought on record Exhibit ‘8’ i.e. birth certificate of the victim girl issued by the Department of Planning and Development, Nalanda, Biharsharif on 27.08.2015. The date of birth is 12.06.2007 as per this document. This document is referred in para ‘15’ of the impugned judgment and based on this document and the oral testimony of PW-1 to PW-4, the learned trial court has accepted the age of the victim to be eleven years at the time of occurrence.

35. Learned counsel submits that the challenge to the age of the victim being less than twelve years at the time of occurrence is not founded on a categorical argument that she was not of such age when the offence was committed rather it dwells on whether the said claim by the prosecution with regard to age of the victim was proved in accordance with law. It is submitted that the process of proving the age of the victim, had it been undertaken in accordance with law, may have led to the confirmation of the assertion made by the prosecution that the victim was under twelve years of age at the time of occurrence. Patna High Court D. REF. No.3 of 2021 dt.19-10-2022

36. It is submitted that the birth certificate (Exhibit ‘8’) was marked on 29.04.2019 after examination of all the prosecution witnesses. The examination of last witness Dr. Amita Singh (PW- 6) concluded on 26.03.2019. It is submitted with reference to the judgment of the Hon’ble Supreme Court in the case of State of Bihar vs. Durgawati Devi reported in 2021 (4) PLJR 516 that the principle that marking of a document as an exhibit does not dispense with its proof is well-settled.

37. The document in itself may be genuine but its contents, date of birth as recorded in Exhibit ‘8’ had to be proved by the witness. This essential exercise of proving the content of the document through the evidence of the witness or any of the witness, was not undertaken in the case at hand. It is submitted that the oral testimony of PW-1 and PW-4 is not suffice as proof of the age of the victim to be under twelve years. PW-1 to PW-4 stated in their examination-in-chief that the victim was eleven years of age at the time of occurrence. Out of these witnesses, save PW-3 mother of the victim, no cross-examination was made by the defence with regard to the said claim by the PWs. Paragraphs ‘24’ and ‘31’ of the deposition of PW-3 refers two suggestions by the defence disputing the assertion made with regard to the age of the victim. The effect of non cross-examination of witness in a civil or Patna High Court D. REF. No.3 of 2021 dt.19-10-2022 criminal trials on a particular point has been decided by the Hon’ble Supreme Court in the case of Laxmibai through LRS. another versus Bhagwanthuva (Dead) Through Lrs. & Others