Mantosh Kumar Mahto vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Heard Mr. Baxi S.R.P. Sinha, learned senior counsel assisted by Mr. Gagan Deo Yadav, learned counsel for the appellant in Cr. Appeal (DB) No. 768 of 2023 and Mr. Subhash Kumar Jha, learned counsel for the appellant in Cr. Appeal (DB) No. 584 of 2023 as also Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State and Mr. Ratnakar Jha, learned counsel for the informant.

These appeals have been preferred for setting aside the judgment of conviction dated 28.03.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 05.04.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-VI-cum-Spl. Judge (POCSO), Madhubani (hereinafter referred to as the ‘learned trial court’) in POCSO G.R. Case No. 27 of 2020 arising out of Rahika P.S. Case No. 72 of 2020. By the impugned judgment, the appellants have been convicted for the offences punishable under Section 376(DA) of the Indian Penal Code (in short ‘IPC’) and Section 6 of the Protection of Children from Sexual Offences Act and by the impugned order, they have been sentenced to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of natural life with a fine of Rs. 20,000/- each in case of default of payment of fine, they have to undergo three months additional simple imprisonment for the offence under Section 6 of the POCSO Act.

The prosecution story is based on the written information of the informant/victim (PW-1). The informant in her written information (Exhibit ‘1’) has stated that on 24.06.2020 at around 08:00 - 09:00 PM she was returning from the feast arranged on the occasion of the ‘Mundan’ ceremony of her neighbour Ram Mahto’s son. When she reached near the lane of her house, the accused persons, namely, (1) Sujit Kumar, (2) Ranjan Kumar (appellant herein), (3) Mantosh Kumar Mahto (appellant herein) and (4) Om Prakash Mahto, who were hiding there from before, caught hold of her, Sujit Kumar gagged her by mouth, Ranjan Kumar pressed her neck, Mantosh Kumar caught her hand and all of them took her to the orchard where Om Prakash Mahto committed wrong act with her, thereafter, other three accused took their turn one after another. She also alleged that the accused persons also threatened her that if she would raise hulla then she would be killed. After committing the rape, the accused fled away, they had also taken some photographs and put the same on the Facebook which was seen on 30.06.2020 whereafter all the villagers came to know about this.

On the basis of the written information of the informant (PW-1), Rahika P.S. Case No. 72 of 2020 dated 30.06.2020 was registered under Sections 376(D), 506, 34 IPC and Section 4/6 of the POCSO Act as also under Section 66(D), 67(A) of the Information Technology Act (in short ‘IT Act’) against (1) Sujit Kumar, (2) Ranjan Kumar (appellant herein), (3) Om Prakash Mahto and (4) Mantosh Kumar Mahto (appellant herein).

After investigation, police submitted chargesheet bearing Chargesheet No. 38 of 2020 dated 20.07.2020 against (1) Sujit Kumar, (2) Ranjan Kumar, (3) Om Prakash Mahto and (4) Mantosh Kumar under Sections 376(D), 506, 34 IPC and Section 4/6 of the POCSO Act as also under Sections 66(D), 67(A) of the IT Act.

Learned trial court vide order dated 21.01.2021 took cognizance of the offences punishable under Sections 376(D), 506/34 IPC, Section 4/6 of the POCSO Act and Section 66(D) and 67(A) of the IT Act against FIR named accused. Learned trial court vide order dated 13.08.2020, sent the records of Juvenile-Sujit Kumar to the Juvenile Justice Board, Madhubani for trial and disposal.

After supply of police papers, charges were read over in Hindi and explained to the accused-appellants to which they pleaded not guilty and claimed to be tried. Accordingly, vide order dated 12.02.2021, charges were framed against them under Sections 376(D), 506/34 IPC, Section 4/6 of the POCSO Act and Section 66(D) and 67(A) of the IT Act.

In course of trial, the prosecution examined as many as eight witnesses and got exhibited various documentary evidences. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided hereunder in a tabular form:-

Thereafter, the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’) in which they denied the allegations and pleaded innocence. They have stated that they have falsely been implicated in this case.

The defence has produced four witnesses and exhibited two documentary evidences which are being mentioned hereunder in tabular form:-

Learned trial court after examining the oral as well as documentary evidences available on the record came to conclusion that the prosecution has been able to establish the foundational facts that the accused committed rape upon the minor victim and the defence has not been consistent in the suggestions given to the witnesses to set up its defence.

Learned trial court found that the defence has not been able to establish cogent, consistent and reliable evident to rebut the reverse burden of proof beyond reasonable doubt.

Learned trial court after considering all the facts and circumstances of the case held that the prosecution has been successfully able to prove its case beyond all reasonable doubts levelled against these appellants. Accordingly, the appellants were convicted for the offences punishable under Section 376(DA) IPC and Section 6 of the POCSO Act. However, prosecution was not been able to prove charges under Sections 66(D) and 67(A) of the IT Act.

Learned senior counsel for the appellants while assailing the impugned judgment and order has submitted that the learned trial court has committed grave error in convicting the appellants.

Learned senior counsel for the appellants has submitted that there has been a delay of six days in reporting of the offence. Learned senior counsel submits that such a long delay was not explained well by the prosecution and no proper explanation was given for the delay apart from the fact that the victim has stated that she was afraid of. Learned senior counsel has further submitted that the victim informed her family only when the video of the offence was uploaded on the internet.

Learned senior counsel for appellants has also pointed out the said video which is said to be uploaded has not been brought on record. Learned senior counsel submits that it creates doubt as to whether or not the appellants were actually the ones who committed the offence.

Learned senior counsel for the appellants submits that the victim’s statement does not inspire confidence. It is submitted that in paragraph ‘9’ of her deposition, PW-1 has stated that the names of the accused persons were told by the villagers near her house on 30.06.2020 which is suggestive of false implication of the accused persons due to dirty village politics.

Learned Additional Public Prosecutor for the State and learned counsel for the informant have opposed the appeals. It is submitted that learned trial court has examined the evidences available on the record meticulously and found the involvement of the appellants in the commission of the offence. Hence, the impugned judgment and order need no interference of this Court.

Learned Additional Public Prosecutor for the State submits that the foundational facts are proved against the appellants and the appellants have failed to prove as to why the victim or her family would falsely implicate them.

Learned Additional Public Prosecutor further submits that the age of the victim in the medical examination has been assessed between 14-15 years which makes her a minor. Learned Additional Public Prosecutor submits that the medical report of the victim shows injury over private part, may be due to sexual assault.

Learned counsel for the informant has endorsed the submissions of learned Additional Public Prosecutor for the State.

We have heard Mr. Baxi S.R.P. Sinha, learned senior counsel assisted by Mr. Gagan Deo Yadav, learned counsel for the appellant in Cr. Appeal (DB) No. 768 of 2023 and Mr. Subhash Kumar Jha, learned counsel for the appellant in Cr. Appeal (DB) No. 584 of 2023. Mr. Sujit Kumar Singh, learned Additional Public Prosecutor has appeared on behalf of the State and Mr. Ratnakar Jha, learned counsel has appeared on behalf of the informant in these appeals.

The prosecution case is based on the written information submitted by the victim (X). In her written information dated 30.06.2020, victim has declared that she is 16 years old. On 24.06.2020, she was returning at about 08:30-09:00 PM from the house of her neighbour Ram Mahto after attending the feast arranged on the occasion of ‘mundan’ of his son. On seeing her alone in street, the four named accused persons who were already there under a plan caught hold of her, Sujit Kumar gagged her by her mouth, Ranjan Kumar pressed her mouth, Mantosh Kumar caught hold of her hand and they took her to the orchard (‘gachi’). She alleged that all the accused persons committed bad act with her and they took their turn one after another whereafter they threatened that if she would raise hulla then she would be killed. After committing the rape, they fled away, they had also taken some photographs and put the same on the Facebook which was seen on 30.06.2020 whereafter all the villagers came to know about this. The written information has been marked as Exhibit ‘1’. On the basis of the written statement, FIR giving rise to Rahika P.S. Case No. 72 of 2020 has been registered.

This Court has noticed on going through the statement of the victim recorded under Section 164 CrPC that she stood by her statement made in the written information. She has remained consistent. She has stated that all the accused persons had committed rape on her after making her naked. Her statement under Section 164 CrPC has been proved in course of trial and the same has been marked Exhibit ‘2/1’.

The victim (X) has been examined as PW-1 in course of trial. She has supported the prosecution case in her examination-in-chief. She has explained the reason for delay in lodging of the FIR. The victim has made a statement that because she was threatened by the accused persons, therefore, she had not disclosed the occurrence to her mother and father but when the accused persons made the video viral on the social media and the villagers came to know about the same, then her mother and father came to know about the occurrence.

She has stated that she had got written her written information through one Lalita Devi, who worked in the Anganwadi. She has stated that in course of investigation, her statement was recorded by a woman police officer and she had given her statement about the occurrence. In course of investigation, her medical examination was also conducted. As regards her age, she was not aware of the date of birth but her birth was of the year 2005. Her eldest brother is 18 years old and the youngest brother is between 9-10 years. She is in middle of the two brothers. Her father used to prepare the earthen utensils. The accused persons were her neighbours and after the occurrence, she had identified the accused persons. It is with respect to her statement made in paragraph ‘9’ of her deposition that the learned senior counsel for the appellants has taken a plea that she identified the accused persons at the instance of the villagers, however, on going through the entire deposition of the victim (X), we find that she has remained consistent with the identity of the accused persons and she has stated in paragraph ‘11’ of her deposition that at the time when the accused persons had caught hold of her, there was light as the electric bulbs were there. She has also stated that when the accused persons caught hold of her then she had tried to shout but Sujit had gagged her by her mouth. Her clothes were torn and she had shown the torn clothes to the police.

We have noticed from the pattern of cross-examination of the victim that the defence has neither questioned her age nor on any material point with regard to the manner of occurrence. The only suggestion given to this witness is that no such occurrence had taken place and the accused were falsely implicated due to village politics. In course of hearing of the appeal, we called upon learned senior counsel for the appellants to demonstrate if there is any material with regard to the enmity between the parties on account of any village politics which may have been a reason for their false implication. Learned senior counsel for the appellants could not demonstrate from the evidence on the record any material showing enmity between the parties or a reason for false implication of the appellants.

We have further noticed from the evidence of the I.O. (PW-8) that he had met the victim during investigation when she had herself come at the police station to register the FIR. The I.O. had recorded her 161 CrPC statement there. The I.O. had, however, not done any investigation on the point as to where the victim was studying. In paragraph ‘9’, he has stated that he had not received any application from Sarpanch or a villager at the police station.

We have also gone through the evidence of SHO (PW-6), who has proved the Exhibit ‘1/1’. He had taken charge of the investigation on 02.07.2020. He had investigated the place of occurrence and had recorded the statement of the prosecution witnesses who had supported the prosecution case. The accused persons were found absconding from their residence when a raid was conducted by this witness. He had seized the mobile phones of Sujit Kumar and accused Om Prakash. This witness has stated that in the mobile, he had found the pictures of the victim. He had proved the seizure list (Exhibit ‘5’). In paragraph ‘13’ of his deposition, he has stated that he had mentioned the mobile number of the mobiles seized from the accused and he had also investigated on the point of making the photo viral. He had, however, not sent any of the exhibits to the forensic laboratory. This witness was suggested by the defence that the story about the chat and making the photo viral through the mobile is wrong and this fact is not mentioned in the FIR and the arrest memo. This witness denied this suggestion.

We have also examined the medical evidence adduced through Dr. Pravriti Mishra (PW-5). She has stated about the age determination report by the Medical Board constituted for this purpose. The Medical Board opined that according to radiological finding given by the Medical Board, the age of the victim is between 14-15 years. As regards the injuries found on the body of the victim, this witness (PW-5) has stated as under:-

In cross-examination, this witness has stated that she was a member of the medical Board, there was injury on the hand of the victim and the hymen was torn but no bleeding was taking place. The witness has confirmed that there was injury and if no treatment takes place then bleeding may happen for one day. On going through the deposition of the Doctor (PW-5), this Court finds that she has fully supported the prosecution case as regards sexual violence and the medical evidence corroborates the prosecution case of commission of sexual assault upon the victim.

Although defence has examined four witnesses on their behalf but on going through their deposition, this Court finds that they are not able to bring any material to show as to why the appellants would be falsely implicated. There was no enmity between the family of the victim and that of the accused persons. We have noticed that the defence has brought on record Exhibit ‘A’ which is a letter On the letter pad of Savitri Devi (Sarpanch) in which it is stated that on 09.05.2021, the villagers of Sapta Village opined that the villager of this village is innocent and has been falsely implicated in this case. Although this document has been brought as Exhibit ‘A’ on behalf of the defence but the I.O. has stated that no such document was provided to him at the police station. This Court finds that the deposition of the defence witnesses are not inspiring. Savitri Devi (Sarpanch) has not been examined.

We have found that the basic foundational facts which are required to be established to raise a presumption under Sections 29 and 30 of the POCSO Act, are very much present in this case. The age of the victim is not in question, she is consistent with regard to the accusation against the accused persons-appellants and even the medical evidence supports/corroborates her statement. Once the foundational facts are established to raise presumption, the burden of proof shifts upon the accused to prove his innocence by preponderance of probabilities. The burden of proof of the accused is not to the extent of proving it beyond all reasonable doubts, but certainly the preponderance of probabilities of innocence is to be proved. In this case, the defence has failed to come out with its burden to prove themselves innocent.

In result, we find no merit in these appeals. The judgment of conviction is upheld.

At this stage, learned senior counsel for the appellants has submitted that these appellants are aged about 21 years and 26 years only at the time of judgment meaning thereby that at the time of occurrence, they were hardly 18 years and 23 years respectively. The learned trial court has awarded a sentence of life imprisonment which means till remainder of their life. The prosecution has not adduced any evidence to show that these appellants cannot be reformed. They are in their young age and at this stage, this Court may consider interfering with the order of sentence so as to give them an opportunity to assimilate themselves in the mainstream of life after undergoing the punishment.

Learned Additional Public Prosecutor for the State has not disputed that the appellants are in their young age and they are in the middle of their twenties and at this stage, there is no material on record to show that they cannot be reformed.

Taking into consideration this aspect of the matter, we are of the considered opinion that the order of sentence impugned in these appeals is required to be interfered with.

We modify the sentence awarded to the appellants to 20 years of imprisonment, out of which 14 years will be rigorous imprisonment.

The order of sentence passed by the learned trial court is modified to the extent stated above. The amount of fine imposed by the learned trial court and other part of the sentence shall remain as it is.

These appeals are partly allowed.

Let the copy of this judgment along with the trial court’s records be sent down to learned trial court.