Vikash Mistry @ Vikash Kumar v. Shakal Deo Choudhary

Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 his daughter aged about 10 years went to Western Badh for cutting grass, Vikash Mistry aged about 20 years lifted his daughter and took her to Rahar field where after taking off her undergarment, put it in her mouth and committed rape on her. Thereafter, when she shouted, Jitender Singh and Ramdev Manjhi who were working in the nearby field ran there then Vikash Mistry fled away. When he got information, he took his daughter to the police station.

After investigation of the case, the police submitted a chargesheet against both the accused persons for the offences under Sections 376/34 IPC and Section 3(2)(v) of the SC/ST Act. The learned Special Judge, POCSO Act took cognizance of the offences under Sections 376 IPC, Section 4 of the POCSO Act and Section 3(2)(v) of the SC/ST Act and after supply of police papers, the charges were explained to the accused which they denied and claimed to be tried. Thereafter, the charges were framed on

08.07.2015 for the offence under Section 376/34 IPC, Section 4 of the POCSO Act and Section 3(2)(v) of the SC/ST Act.

During trial, the prosecution produced as many as 10 witnesses and proved some documentary evidences. The full description of the witnesses and the documents proved on behalf Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 of the prosecution are being provided hereunder for a ready reference:- List of Prosecution Witnesses PW-1 PW-2 PW-3 PW-4 PW-5 PW-6 PW-7 PW-8 PW-9 PW-10 Jitendra Singh Shakal Dev Chaudhary Victim Priti Kumari Parvati Devi Munni Kumari Awadh Bihari Singh Dr. Sushma Varma Smt. Kumari Vijaya Ramdeo Manjhi List of Exhibits produced on behalf of the Prosecution Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Written report of the informant Signature of victim on her statement u/s 164 CrPC Endorsement on written report by SHO Wazirganj P.S. Formal FIR Statement of victim u/s 164 CrPC

The accused persons were examined under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’), they claimed themselves innocent. The defence got exhibited two documents, namely, Exhibit ‘A’ which is the chargesheet of the Wazirganj P.S. Case No. 307 of 2012 and Chargesheet No. 24 of 2013 dated 31.03.2013 to show that the informant is a Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 chargesheeted accused and the informant of Wazirganj P.S. Case No. 307 of 2012 is the wife of the appellant Darogi Mistry. Exhibit ‘B’ has been proved which is the format of the charge in Sessions Trial No. 239 of 2016 in which charge has been framed against the informant of this case, Parvati Devi wife of the informant (PW-5) and Binod Chaudhary under Sections 307/34, 452/34, 380/34 IPC and Section 3/4 of the Prevention of Witches Act. Findings of the Learned Trial Court

The learned trial court having analyzed the prosecution evidences in form of oral testimony of the witnesses as well as the documentary evidences held that out of ten prosecution witnesses, PW-1 and PW-10 are the hostile witnesses but PW-2 who is the informant of the case, PW-3 the victim herself aged about 10 years, PW-4 and PW-6 who are the friends of the victim and PW-5 who is the mother of the victim have fully supported the prosecution case and their testimonies corroborate the prosecution story as disclosed in the first information report. The learned trial court held that PW-4 and PW-6 are the eye witnesses of the occurrence, both are minor aged about 10-11 years old girls and they have supported the prosecution case. The learned trial court though observed that no doubt, some contradiction cited by the defence in the cross-examination are there but these contradictions Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 are natural and have come in course of cross-examination by clever lawyers. The learned trial court held that these contradictions do not demolish the prosecution case.

The learned trial court held that from the prosecution evidence, it has been established that there was an inimical relationship between Darogi Mistry and the informant. Darogi Mistry facilitated and introduced the victim with the accused Vikash Mistry for raping her and that way, he satisfied his earlier inimical term. On the basis of these discussions, the learned trial court held that the prosecution had been able to establish its case. The learned trial court rejected the defence submission that the two independent witnesses, namely, PW-1 Jitendra Singh and PW-10 Ramdev Manjhi who firstly reached the place of occurrence have been declared hostile by the prosecution and in this case, there is no independent witness. The defence argued that the other prosecution witnesses have not supported the manner of the prosecution case and the Doctor (PW-8) had not found any external injury on the body of the victim whereas the alleged forcible rape is said to have been committed on a hard surface by a 20 years young boy. The defence had argued that Darogi Mistry and Vikash were close friends, hence, in order to settle the score, Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 the informant side had made false and fabricated case against both of them. Submissions on behalf of the Appellants

Mr. Ajay Kumar Thakur, learned counsel for the appellant Vikash Mistry has led the arguments. Learned counsel submits that on perusal of the evidences available on the record, it would appear that after the alleged occurrence, the victim girl had gone to the police station and she had made her statement before police and her signature was also obtained on the said statement but this first version of the prosecutrix has been suppressed. Attention of this Court has been drawn towards paragraph ‘14’ of the deposition of the mother of the victim girl who has been examined as PW-5. Learned counsel has also drawn the attention of this Court towards paragraphs ‘17’ and ‘18’ of the deposition of the victim girl (PW-3) wherein she has stated that she had reached the police station at about 04:00 PM but she has stated that at the police station, the case was lodged by her father and not by her. Her statement was recorded by police after four days. She has further stated that in her statement made before the Darogaji, she had not taken name of Darogi Mistry. Learned counsel submits that from the evidence of PW-3 and PW-5, it is crystal clear that the victim had gone to the police station on the date of occurrence Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 and though PW-5 says that she had made her statement and had signed on the same but in order to support the prosecution case, the victim girl has made a statement that her father had lodged the case. Her statement that she was examined by police after four days creates a lot of doubt as to whether the first version of the prosecutrix is being suppressed, there is no reason as to why the police will not record her statement on the same day of the occurrence when she had gone to the police station.

Learned counsel submits that the first information report is based on the written application of the father of the victim who has been examined as PW-2. In his application, PW-2 discloses that her daughter aged about 10 years had gone to western ‘badh’ for cutting grass. He has stated that the appellant Vikash Mistry lifted his daughter in his hand and took her to a rahar field where he forcibly put the undergarment of the girl in her mouth and committed rape on her but at the same time, he has alleged that when his daughter shouted, then two persons, namely, Jitendra Singh (PW-1) and Ramdev Manjhi (PW-10) who were working in the nearby field ran and then Vikash Mistry fled away. Both PW-1 and PW-10 have not supported the prosecution case and they have been declared hostile. Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024

Learned counsel submits that what is required to be taken notice of is that in the written application, the informant has not disclosed the name of PW-4 and PW-6 as the other two children who were present with the victim at the time of occurrence. One of them (PW-4) is the cousin sister of the victim whereas the another one (PW-6) is a close-door neighbour. Further, the allegation that the appellant had forcibly put the undergarment of the victim in her mouth would lead to a conclusion that after the undergarment was forcibly put in her mouth, she could not have shouted but before that only, she could have been in a position to raise her voice. In this regard, attention of this Court has been drawn towards the testimony of the victim girl (PW-3) who has stated in paragraph ‘13’ of her deposition that when Vikash lifted her, she had shouted then both the girls and two persons came there whereafter Vikash fled away. It is, thus, submitted that a conjoint reading of the allegation in the FIR and the deposition of PW-3 would disclose that she was in a position to shout when she was lifted by the appellant Vikash and when she shouted then the two girls and two persons whose names have not been disclosed by PW-3 in her deposition came there and then Vikash fled away.

Learned counsel submits that in this case, according to PW-3, the place of occurrence is at a distance of Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 approximately one kilometer west to the village. Contrary to this, PW-5 who is mother of the victim has stated in her deposition that the place of occurrence is situated at a distance of 10 ‘bans’ (bamboos). The victim has stated in her deposition that after the occurrence, one ‘Muia’ who was her maternal grandmother had come and she had brought her back to home. This grandmother of the victim who is said to have arrived at the place of occurrence by chance has not been examined by police. Contrary to this, the informant claimed that after getting information from PW-1 and PW-10, he had gone to the place of occurrence and found that his daughter was in pool of blood and was unconscious. He lifted his daughter by hand and brought her to Wazirganj Police Station.

It is submitted that on the point of identification of the accused, the victim girl has stated in paragraph ‘15’ of her deposition that prior to the occurrence, she had not seen Vikash Mistry and she did not know him by face or by name. She was told by a ‘Brahmin’ of Kari Tola Village that he was Vikash Mistry. She did not know the name of the ‘Brahmin’ but states that she was told this at the time of occurrence itself and out of those two persons one was the ‘Brahmin’. It is submitted that the victim girl is herself from village-Kari Tola. Neither in Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 course of investigation nor in course of trial, the said Brahmin who is said to have disclosed the name of Vikash Mistry could be identified. It is, however, evident that when the first information report was lodged by PW-2, the name of Vikash Mistry was mentioned at the instance of someone else who was the so-called Brahmin. Even PW-2 has not disclosed the name of the said person who disclosed the name of Vikash Mistry.

It is submitted that the occurrence took place in March 2014 whereas the deposition of the victim girl took place in May

2017. During this period, no TIP was conducted by Police to establish the identity of the accused Vikash Mistry. It is submitted that in case of Kunjumon @ Unni v. State of Kerala reported in (2012) 13 SCC 750, the Hon’ble Supreme Court has observed that in case where the accused is stranger to witness and there has been no Test Identification Parade (in short ‘TIP’), the trial court should be very cautious while accepting the dock identification by such a witness. It is submitted that only when the evidence of the prosecution witness who identified the accused in the court is of a sterling nature, TIP may not be necessary. It is, however, submitted that in the present case, not conducting TIP would prove fatal to the prosecution case.

Learned counsel submits that PW-4 and PW-6 both have been introduced in this case as a witness at a much belated Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 stage. The informant did not disclose in his fardbeyan their names or said about the presence of PW-4 and PW-6 at the time of occurrence with the victim. The victim was taken to the learned Judicial Magistrate for her statement under Section 164 CrPC after five days. In her statement under Section 164 CrPC for the first time, she has stated that three other girls were with her. She did not disclose the name of those three girls. In her deposition, in course of trial, however, she talks of only two girls who had come on hearing her shouts. The victim was 10 years old at the time of her statement under Section 164 CrPC but the learned Magistrate while recording her statement did not put any preliminary question to her with a view to ascertain whether the child can understand question put to her and she is in a position to give rational answers. The Magistrate did not satisfy herself that the child is able to understand the questions and respond to that. It is pointed out with reference to the evidence of the learned Magistrate who has been examined as PW-9 that she has stated that she did not give any certificate that she had read over the statement to the victim girl and only after understanding the same she had put her signature.

It is submitted that the enmity with the Darogi Mistry has been admitted by PW-3 as well as PW-5 in their depositions and the fact that PW-3 did not take the name of Darogi Mistry when she was examined by police after four days but on the fifth day in her Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 statement under Section 164 CrPC before the Magistrate, she came out with a statement against Darogi Mistry also only shows that this child witness was tutored in the meantime to falsely implicate the accused persons. She would, therefore, not be a sterling witness and any conviction based on her sole testimony would be fatal to the accused.

Learned counsel for the appellants would submit that in this case, the appellants were not subjected to medical examination as required under Section 53A Cr.PC. Referring to paragraphs ‘79’, ‘80’ and ‘81’ of the judgment of the Hon’ble Supreme Court in the case of Chotkau Vs. State of Uttar Pradesh reported in (2023) 6 SCC 742: AIR 2022 SC 4688, learned counsel submits that there is a distinction between Section 164A Cr.PC and Section 53A Cr.PC which were inserted in the statute book vide Amendment Act No. 25 of 2005. It is submitted that failure to obtain the report of the Forensic Science Laboratory (in short ‘FSL’) would prove fatal to the prosecution. Submissions on behalf of the State

Mr. Ajay Mishra and Ms. Shashi Bala Verma, learned Additional Public Prosecutors for the State have contested the appeals. It is submitted that the learned trial court has duly examined and analyzed the evidences available on the record. The prosecution witnesses have supported their case and the victim’s Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 testimony in this case may be relied upon to convict the appellants. Learned Additional Public Prosecutors have relied upon the judgment of the Hon’ble Supreme Court in the case of Ganga Singh Vs. State of Madhya Pradesh reported in (2013) 7 SCC

Consideration

We have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also perused the learned trial court’s records. The prosecution case started with a written application submitted by the father of the victim who has been examined as PW-2 in this case. In his written application dated 15.03.2024 submitted to the Officer-in-Charge of the Wazirganj Police Station, he has stated that the occurrence took place on 15.03.2014 at 03:00 PM when his daughter (X) aged about 10 years had gone towards west side of the house, in the ‘badh’ for cutting grass. In his deposition, PW-2 has stated that he had given information about the occurrence at his home whereafter he had gone to the place of occurrence. He has admitted in paragraph ‘17’ of his deposition that neither in his written application nor in his re-statement before police stated that PW-4 and PW-6 had seen the occurrence and they had come at his home to inform. PW-2 has also admitted in his deposition that neither in Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 his written application nor in his re-statement, he had stated that his daughter was in pool of blood and was unconscious. Therefore, this Court finds that PW-2 had introduced PW-4 and PW-6 in course of his deposition and made exaggerated statements about the condition of victim after the alleged occurrence. He is an inimical witness, therefore, his testimony is required to be examined with much circumspection and care.

PW-2 has stated that Vikash Mistry who is a resident of the same village lifted his daughter by his hand and took her to ‘rahar’ field (‘rahar’ is a kind of pulses). The informant (PW-2) alleged that Vikash Mistry took out the ‘janghiya’ (undergarment) of the victim girl, put the same in her mouth and committed rape on her. Thereafter, when his daughter shouted, Jitendra Sah (PW-1) and Ramdeo Manjhi (PW-10) who were working in the adjacent fields came running, then Vikash Mistry fled away. The informant claimed that he got information whereafter he had come to police station with the victim. The informant has stated that Vikash Mistry is a regular visitor of the house of Darogi Mistry in his village and he had prior enmity with him. The informant alleged that it was Darogi Mistry who had got identified his daughter to Vikash Mistry. Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024

It appears on perusal of the evidences available on the record that in his written application (Exhibit ‘1’), PW-2 has not stated that he had visited the place of occurrence and had found his daughter lying in pool of blood and unconscious but in his examination-in-chief, PW-2 has stated that on getting information about the occurrence, he had gone to the place of occurrence and found that his daughter was in pool of blood and lying unconscious whereafter he had brought his daughter to Wazirganj Police Station lifting her by his hand and submitted his application in the police station. This is not wholly correct. He proved his application as Exhibit ‘1’. This Court further finds that in his application, the informant has stated that it was Jitendra (PW-1) and Ramdeo Manjhi (PW-10) who were working in the adjacent fields and they had reached the place of occurrence after hearing the shouts of the victim girl but PW-1 and PW-10 both have not supported the prosecution case. They were declared hostile and cross-examined by the prosecution but nothing significant could be elicited from them.

As admitted by PW-2, in his fardebyan and re- statement before police, the informant (PW-2) has not mentioned about presence of PW-4 and PW-6 but in course of trial, he has stated that he got information about the occurrence from PW-2 Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 who had come to his house and told her that rape has been committed upon his daughter. This statement of PW-2 is an after- thought, hence, not believable. PW-2 is his niece. In his deposition, PW-2 has stated that his daughter had gone for cutting grass with 2-3 girls from the neighbour. This Court finds that the presence of 2-3 girls has been introduced by PW-2 in course of trial. He has, however, stated that regarding the occurrence, he had not given any information in the village. In his cross-examination on behalf of Vikash Mistry, PW-2 has stated that he had gone to the place of occurrence from his house on foot, he had left his daughter at the place of occurrence and had come to his home by foot.

The I.O. (PW-7) has stated in his deposition that he had recorded the FIR at the police station at 17:30 Hours, recorded restatement there itself and at the same time, he had recorded the statement of the victim girl and her mother. He had visited the place of occurrence on 16.03.2014 but he had not found any blood at the place of occurrence. He had not mentioned in the case diary that crops were in trampled condition. He had not found any suspicious article at the place of occurrence. He has also stated that the victim had not taken name of Darogi Mistry and in her statement recorded in paragraph ‘4’, the name of Darogi Mistry is not there. The I.O. has further stated that in paragraphs ‘27’ and ‘28’ of the case diary, the statement of PW-4 and PW-6 respectively are mentioned, both of them had not taken name of Darogi Mistry in their statements.

It also appears from the deposition of the I.O. that he has stated in paragraph ‘14’ that in her statement under Section 164 Cr.PC, the victim girl had stated that in the field, one ‘Muia’ came who brought her home. The said ‘Muia’ was her grandmother.

On an analysis of the evidences on the record, it is evident that the whole story looks mysterious. Initially, the informant (PW-2) mentioned Jitendra Sah (PW-1) and Ramdeo Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 Manjhi (PW-10) as the two witnesses who had come running at the place of occurrence whereafter Vikash Mistry fled away and then he got the information. When PW-1 and PW-10 did not support the prosecution case, after about five days, for the first time the victim girl, in her statement under Section 164 Cr.PC recorded on 20th March, 2014 made a statement that she had gone for cutting grass with three other girls but she did not disclose the name of those girls. In her Section 164 Cr.PC statement for the first time, she also introduced allegations against Darogi Mistry with whom she had enmity. The informant had not mentioned the name of Darogi Mistry and even the victim had not mentioned his name before the I.O. in course of investigation. From all these materials, one thing is evident to this Court that the victim in this case was a tutored witness and she cannot be put in the category of a sterling witness.

On the point of implication of Vikash Mistry, there is a peculiar statement of the victim in paragraph ‘15’ of her deposition. She has categorically stated that prior to the occurrence, she had never seen Vikash Mistry and she did not know him earlier either by his face or by his name. Contrary to this, her father (PW-2) has stated in his written application (Exhibit ‘1’) that Vikash Mistry was a regular visitor of the house of Darogi Mistry with whom he had prior enmity. It is not known Patna High Court CR. APP (DB) No.645 of 2018 dt.21-10-2024 as to how PW-2 could mention the name of Vikash Mistry in his written application. Who disclosed the name? The victim, PW-4 and PW-6 did not know Vikash either by name or face. From the evidence of the informant (PW-2), it would appear that according to him, the house of Darogi Mistry is just adjacent to the house of the informant. She is trying to be unknown but then she has stated in the same paragraph that one Brahmin of Kari Tola village had told her that he is Vikash Mistry.