Hareram Kumar Alias Hareram Thakur Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (SJ) No. 427 of 2023

Hareram Kumar @ Hareram Thakur, aged about 23 years, son of Sri Nakul Thakur, resident of Bagjori Charak, P.O. & P.S.- Tundi, District- Dhanbad (Jharkhand) … … Appellant

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-Versus-

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The State of Jharkhand … … Respondent

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Md. Zaid Ahmed, Advocate For the State : Mr. Pankaj Kumar, P.P.

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Reserved on 25.07.2024 Pronounced on 04.10.2024

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Heard learned counsel appearing for the parties.

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2. This criminal appeal has been filed against the judgment of conviction dated 03.06.2023 and the order of sentence dated 05.06.2023 passed by the learned Special Judge, POCSO Act, Dhanbad in Special (POCSO) Case No.36 of 2021, arising out of Tundi P.S. Case No.16 of 2021, whereby and whereunder the appellant has been convicted under Sections 354, 504 and 506 of the Indian Penal Code (hereinafter referred to as IPC) and Section 8 of POCSO Act and has been sentenced to undergo rigorous imprisonment for 4 years with fine of Rs.2,000/- for the offence under Section 8 of the POCSO Act and in default of payment of fine, to undergo additional imprisonment for 15 days. The appellant has been further sentenced to undergo rigorous imprisonment for 2 years with fine of Rs.500/- for the offence under Section 354 of IPC and in default of payment of fine, to undergo additional imprisonment for one week, to undergo rigorous imprisonment for 1 year with fine of Rs.500/- for the offence under Section 504 of IPC and in default of payment of fine, to undergo additional imprisonment for one week and to undergo rigorous imprisonment for 1 year with fine of Rs.500/- for the offence under Section 506 of IPC and in default of payment of fine, to undergo additional imprisonment for one week. All the sentences were directed to run concurrently and the period of detention undergone by the appellant, if any, during investigation and

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trial of the case was directed to be set off against the sentence of imprisonment awarded to him.

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Arguments on behalf of the Appellant

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3. Learned counsel for the appellant submitted that there is delay of 2 days in lodging the F.I.R. as the alleged occurrence took place on 16.02.2021 and the F.I.R. was lodged only on 18.02.2021. He further submitted that vague allegations have been levelled against the accused persons including the appellant and there is no specific allegation of any overt act against the appellant. The victim in her statements recorded under Section 164 of Cr.P.C has also not alleged any overt act against the appellant. PW-1 is the victim herself. PW-2 is the mother and PW-3 is the father of the victim and both are hearsay witnesses. PW-1 in her evidence also has not stated any specific allegations against the appellant. He further submitted that PW-1 in her evidence substantially developed her case and claimed that the appellant had prepared the video, but she had not stated the same in her statement recorded under Section 164 of Cr.P.C. Therefore, her evidence cannot be relied upon. He further submitted that DW-1 is the mama of the victim who had brought her to her house and DW-1 has clearly stated that he was informed by the appellant and then only he had gone to the place of occurrence and had rescued the victim. The appellant is also a distant relative of the victim girl and from the evidence of prosecution witnesses and DW-1, it appears that there was land dispute between the parties relating to taking water of a well and in such situation, false implication of the appellant cannot be ruled out.

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4. The learned counsel for the appellant further submitted that the most important witness-Suraj Pandey, who happens to be one of the victims and eye witness to the occurrence has not been examined by the prosecution and non-examination of Suraj Pandey makes the prosecution case doubtful. He also submitted that there is nothing on record to demonstrate that the appellant has sexually assaulted the victim girl.

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5. The learned counsel for the appellant relied upon a judgment passed by the Hon’ble Delhi High Court passed in the case of Veerpal -vs- State reported in 2024 SCC OnLine Del 2686 to submit that when the evidence of the victim and other prosecution witnesses are unreliable, the conviction and sentence of the appellant is fit to be set aside and the appellant is fit to be acquitted from the charges levelled against him.

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Arguments on behalf of the State

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6. Learned counsel appearing for the Opposite Party-State, on the other hand, opposed the prayer made on behalf of the appellant and submitted that the appellant has committed serious nature of the offence. Considering the facts and circumstances of the case, no interference is called for in the impugned judgment.

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Findings of this Court

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7. The prosecution case is based on the written report of the Informant-mother of the victim lodged on 18.02.2021 alleging that when her daughter (victim), aged about 16 years, was coming to her home on 16.02.2021 at about 02:00 P.M. from Project Girls High School, Tundi, her co-villagers namely, Hareram Kumar, Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh Thakur took her away towards the boundary of Dhulu Mahto near the bush and molested her and also started talking in filthy language and they forcibly made her video. When she objected, they called some other boys. She saved herself anyhow and fled away from there. All the boys threatened to kill her if she will disclose the matter to anyone. Thereafter, the boys made the video viral on the WhatsApp. She prayed to inquire the matter and to take appropriate legal action.

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8. On the basis of the written report, the case was registered as Tundi P.S. Case No. 16/2021 dated 18.02.2021 under Sections 354, 504, 506/34 of IPC and Sections 8/12 of POCSO Act, 2012 against Hareram Kumar (appellant), Balram Thakur, Shivam Kumar, Jairam Thakur, Ritesh Thakur and one unknown. After completion of investigation, the Investigating Officer submitted charge-sheet on 15.10.2021 against the appellant and Balram Thakur, Shivam Kumar

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and Jairam Thakur under Sections 354, 504, 506/34 of IPC and Sections 8/12 of POCSO Act, showing lack of evidence against Ritesh Kumar. On 23.11.2021, cognizance of the offence under Sections 354, 504, 506/34 of IPC and Section 8 of POCSO Act was taken against the appellant and Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh Thakur.

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9. On 02.03.2022, the charges under Sections 354, 504, 506/34 of IPC and Section 8 of POCSO Act were framed against the appellant and Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh Thakur which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

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10. In course of trial, the prosecution examined altogether four witnesses in order to substantiate the charges against the accused persons. PW-1 is the victim girl, PW-2 is the Informant of the case and mother of the victim girl, PW-3 is father of the victim girl and PW-4 is Hemant Kumar who is the Investigating Officer of the case.

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11. The prosecution exhibited the statements of the victim recorded under Section 164 Cr.P.C as Exhibit-1 exhibited by the victim, signature of PW-2 on the written report as Exhibit-2 exhibited by PW2, registration endorsement on the written report as Exhibit-P2/1/PW4, formal F.I.R. as Exhibit-P3/PW-4 and birth certificate of the victim as Exhibit-P4/PW-4.

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12. PW-1 is the victim girl. She in her examination-in-chief stated that on 16.02.2021 at 02.00 P.M. when she was returning to her home from her school after Saraswati Puja, she met Suraj on the way. When she was talking with Suraj, five boys of her village namely, Hareram Kumar (appellant) and Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh Thakur started molesting her and talking to her in filthy language. They caught her hand and took her towards the jungle and threatened to kill her. They forced her to stand with Suraj and prepared their video and thereafter, they made the video viral. The appellant had prepared the video. Thereafter, she told the entire incident to her mother and her mother filed the case. She further deposed that her statement was recorded by the Magistrate in court

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and on reading the same, she made her signatures at two places. She exhibited her statement recorded under Section 164 of Cr.P.C as Exhibit-1. She claimed to identify the appellant and Jairam Thakur and identified Balram Thakur, Shivam Kumar and Ritesh in court.

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In her cross-examination, PW-1 (victim) admitted that Prakash Thakur (DW-1) is her Mama and when she had gone in the jungle, Prakash Thakur had brought her back to her house on his motorcycle. The house of her Mama is at Kolhar and the accused persons are entitled for their share in property of her Mama. She further admitted that the viral video is not available with her or her family members. She had not sustained any injury and the accused persons had not torn her clothes. Only the appellant had caught her hand and had said “I Love You” to her and no other indecent/act was committed with her.

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She further admitted that she was acquainted with Suraj Pandey for the last two years and she was not with Suraj Pandey on the day of occurrence, rather she had met Suraj Pandey on the way. She denied the suggestion that she was with Suraj Pandey in Kolhardih jungle and the appellant had informed her Mama Prakash Thakur (D.W-1) and thereafter, Prakash Thakur rescued her from Suraj Pandey and took her to her house.

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The victim further admitted that her mother and father are accused in Tundi P.S. Case No.31/2021 registered under Section 302/34 of IPC for committing murder of Pramod Thakur, which is pending. She admitted that all the accused persons are from her village and she used to meet them before the occurrence and no such occurrence had happened with her earlier, but the appellant had said earlier also. She denied the suggestion that the appellant has land dispute with them and a panchayati was held on 06.02.2021 in connection with the land dispute between the appellant’s father namely, Nakul Thakur and mother of the victim and a settlement was arrived in which her mother and the father of appellant had made their signatures. She denied the suggestion that due to land dispute, her mother has filed the case against the accused persons on false allegations and no such occurrence had taken place. She also denied

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the suggestions that she deposed falsely and her statement under Section 164 of Cr.P.C is also false. She denied the suggestion that the appellant and other accused persons had not committed any indecent acts with her and had not said any objectionable words to her.

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13. PW-2 is the Informant of the case and mother of the victim. She in her examination-in-chief deposed that on 16.02.2021, when her daughter was returning from her school, Suraj Pandey had met her on the way. When the victim was talking with Suraj Pandey, the appellant and Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh met her and restrained her. They caught her hand and abused her in filthy language and prepared a video of the victim with Suraj Pandey. When the victim returned home, she told the entire occurrence to her. Thereafter, she went to police station and filed the case. The written report was written by the police and she had made her signature on it. She exhibited her signature on the written report as Exhibit-2. She claimed to identify the appellant and Jairam Thakur and identified Balram Thakur, Shivam Kumar and Ritesh in court

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In her cross-examination, PW-2 admitted that she has not seen the occurrence and she has deposed as told by her daughter about the occurrence. She denied the suggestion that her daughter was caught with Suraj Pandey in Kolhar jungle. She further admitted that the name of her mother is Sulochana Devi and the appellant is from the family of Nakul Thakur, and Ritesh Thakur is from the family of Dashrath Thakur and she and her mother is a gotiya of Dashrath Thakur. When her signature was shown, she identified her signature which has been marked as Identification-X. She denied the suggestion that she had previous enmity with the accused persons and she has given a complaint in Tundi P.S. and the detail of which are mentioned in the document of the Panchayat dated 06.02.2021. She also denied the suggestion that she is an accused in Tundi P.S. Case No.31/2021 in connection with murder of Pramod Thakur. She admitted that when she had met the victim, there was no injury on her person. She further admitted that she cannot produce the viral video of her daughter with Suraj Pandey.

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14. PW-3 is father of the victim girl. He in his examination-in-chief deposed that the occurrence had taken place on the day of Saraswati Puja in 2021 and he was in Kolkata in connection with his work. When he returned home, his daughter told him that when she was returning from school and reached near the boundary wall of Dhulu Mahto, Ritesh Thakur, Jairam Thakur, Balram and another boy started molesting her and had prepared a video of the victim making her to stand with her friend namely, Suraj. He identified Ritesh and another accused son of Phitengi Thakur and claimed to identify the other accused persons.

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In his cross-examination, PW-3 admitted that the police had enquired from him, but he denied that he had stated in the statement before the police that his wife had informed him about the occurrence at 03:40 P.M. He admitted that he had come with vehicle at about 02:30 P.M. on the next day. He stated that he had said before the police that his daughter had told him that when she was coming from school and had reached near the boundary of Dhulu Mahto, Ritesh Thakur, Jairam Thakur, Balram and one unknown boy started molesting her and had prepared video with her. He admitted that he identifies the accused persons from before and his daughter had told the names of five boys who had taken her towards the boundary of Dhulu Mahto and she had not told the name of one boy who had caught and taken her away. He denied the suggestion that his daughter was not molested by any boy and was not taken towards the jungle of Dhulu Mahto. He further denied the suggestion that the present case has been filed due to previous land dispute between his wife and the accused persons and that he and his wife are accused in Tundi P.S. Case No.31/2021 in connection with the murder of Pramod Thakur due to land dispute. He denied that he has deposed falsely due to his wife.

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15. PW-4 is the Investigating Officer of the case. He in his examination-in-chief deposed that on 18.02.2021, he was posted as S.I. at Tundi Police Station and on that day, Tundi P.S. Case No.16/2021 was registered on the basis of the written report of the

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mother of the victim girl and the investigation of the case was assigned to him. He exhibited the registration endorsement on written report as Exhibit- P-2/1/PW-4 and the formal FIR as Exhibit- P-3/ PW-4. He further deposed that in course of investigation, he recorded re-statement of the informant and the statements of the witnesses namely, Jiwan Thakur, Suraj Pandey, Sulochana Devi, Bablu Singh and the independent witnesses namely, Prakash Thakur, Umesh Thakur, Trilochan Thakur, Shiv Shankar Thakur, Rakesh Kumhar and Munna Rajwar. He visited the first place of occurrence which was situated at a distance of 06 K.m. in Koldih jungle in the western direction of Tundi P.S. The victim girl told that from Bhagjori More, Jairam and Hareram had caught her and his friend Suraj Pandey had taken them forcibly towards Koldih jungle. Second place of occurrence was situated at a distance of 1 K.m. from the first place of occurrence inside the jungle. Statement of victim girl was recorded in court under Section 164 of CrPC. After completion of investigation, he submitted Charge-sheet No.75/2021 dated 15.10.2021 under Sections 354, 504, 506/34 of IPC and Sections 8/12 of POCSO Act against the appellant and Balram Thakur, Shivam Kumar and Jairam Thakur, showing lack of evidence against Ritesh Thakur. Thereafter, he procured a certificate issued by the In-charge, Headmaster, Project Kanya High School, Tundi, Dhanbad vide Letter No.24 dated 22.02.2021 relating to date of birth of the victim in which date of birth of victim is written 08.07.2003. He exhibited the birth certificate of the victim as Exhibit- P-4 / P.W.4. He stated that he had not arrested the accused persons. He identified accused Shivam Thakur.

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In his cross-examination, the Investigating Officer admitted that the father of the victim had not stated before him that the victim had told him that when she was coming from school and she had reached near the boundary of Dhulu Mahto, the accused persons had caught and molested her and had prepared her video. The victim and her mother had not given any video clip to him. In paragraph 55 of the case diary, Munna Rajwar had stated that on 16.02.2021 at about 13.40 hours, when he was returning with Bablu Singh and Rakesh

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Kumar, he saw that Suraj Pandey and the victim were sitting and talking to each other at the eastern side of the boundary wall of Dhullu Mahato. After some time, Prakash Thakur, Mama of the victim girl reached there and took away her on his motorcycle. Prakash Thakur has given his statement that on 16.02.2021 at about 13.50 hours that Hareram Thakur had informed him on phone that Suraj Pandey and the victim girl were talking in the Koldih jungle and some boys had surrounded them and he was told to go there quickly. When he went there, Suraj Pandey had fled away and he brought the victim back and had handed over her to her parents. In Paragraph No.79 of case diary, PW-4 had stated that in course of enquiry against Ritesh Thakur, he had gone to Patil Rail Infrastructure Private Limited, Bokaro and had met the Supervisor namely, Lal Bahadur Chouhan who had informed him that on 16.02.2021, Ritesh Thakur was working in the company and his attendance was entered in an attendance register. Location of mobile phone no. 9326469038 from 07.57.23 to 20.35.24 on 16.02.2021 was active in Bokaro and his mobile was not present at the place of occurrence. In course of investigation, he had found that land dispute was going on before occurrence and some dispute in between the informant and the villagers had taken place with regard to taking water from the well and informant had submitted a complaint to Police in the connection. He further admitted that the FIR in the present case was lodged after two days, but no reason was given for the delay and the statement of the victim under Section 164 of Cr.P.C. was recorded after four days and there is no explanation for the same recorded in the case diary. He further admitted that in course of investigation, except the victim, he had not found any other evidence with regard to touching and molesting the victim by the accused persons. He denied the suggestion that he had done table work and had not conducted any investigation and has submitted the charge-sheet incorrectly as per the direction of the superior officer.

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16. On 12.09.2022, the statements of the appellant and other accused persons were recorded under Section 313 of Cr.P.C wherein they denied the incriminating evidences put to them. The appellant

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stated that he had not committed any alleged act and the victim is his bhanji in relation and her mother is his sister in relation and he has been falsely implicated in the case due to land dispute and he claimed to be innocent. Thereafter, the appellant and other accused persons examined 03 witnesses in their defence. DW-1 is Prakash Thakur, DW-2 is Trilochan Thakur and DW-3 is Shiv Shankar Thakur. 17. DW-1 in his examination-in-chief stated that the victim is her Bhagni and on 16.02.2021 at about 01.45 P.M, the appellant informed him on phone that some outsider boy has caught her Bhagni and has kept her in the jungle. When he reached koldih jungle, he found that 3- 4 outsider boys and Naresh Thakur, Trilochan Thakur, Shiv Shankar Thakur of his village there. The victim is Bhagni in relation to the appellant and Jairam Thakur, Balram Thakur and Ritesh Thakur and sister in relation to Shivam Thakur. He exhibited a partition document dated 06.02.2021 as Exhibit- D-1/ DW-1 in which his signature is present from the side of first party. He also exhibited the thumb impression of the mother of the informant as Exhibit- D-2/ DW-1, the thumb impressions of Kishori Thakur, Naresh Thakur and Dukhni Devi from the second party as Exhibit- D-3/ DW-1, signature of Shiv Shankar Thakur as Exhibit- D-4/ DW-1, signature of Amin as ExhibitD-5/ DW-1, thumb impressions of Sulochana Devi and Umesh Thakur and signatures of mother of the victim and Nirmal Thakur from the first party as Exhibit- D-6/ DW-1 and the signatures of Kishori Thakur, Dashrath Thakur and Naresh Thakur from the second party as Exhibit- D-7/ DW-1. Umesh Thakur had lodged NDPS Case No.21/2021. He further stated that no indecent act was committed with the victim and the police had recorded his statement.

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In his cross-examination, he admitted that the amin had not written in his presence and the Investigating Officer had not recorded the fardbeyan in his presence. He further admitted that he had given his statement to the police that on 16.02.2021 at 13:50 hours, the appellant called him saying that when Suraj Pandey and the victim were talking to each other in Koldih jungle, some boys have surrounded them and asked him to go quickly. When he reached there,

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Suraj Pandey had fled away. Thereafter, he brought the victim to her house on his motorcycle. He further stated that he had not seen the occurrence of molestation with the victim girl.

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18. DW-2 in his examination-in-chief stated that on 16.02.2021, when he was returning to his home from his shop, he had seen Suraj Pandey and the victim girl sitting on the side of the boundary wall of Dhullu Mahato. Suraj Pandey went away from there. Hareram Thakur called the Mama of the victim girl. Thereafter, Mama of the victim girl came there with Jairam Thakur and took away the victim girl with him. Thereafter, all persons dispersed from there. He further stated that a dispute had taken place between the accused persons with mother of the victim girl for taking water from the well. Police had not recorded his statement. Nothing wrong had been committed with the victim girl. In his cross-examination, he admitted that when he was returning at about 01.40 - 01.45 hours, the appellant was not with him and he was there with other persons. The appellant had called in his presence and when he was standing there, the Mama of the victim had come there.

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19. DW-3 in his examination-in-chief stated that in year 2021, when he was returning from Kolhar village to Bhagjori, he had seen the victim girl and Suraj Pandey were sitting in front of the boundary wall of Dhullu Mahato and three boys from Kolhar village were there. When he was going alongwith Trilochan Thakur and Naresh Thakur, he had seen Suraj Pandey and the victim girl sitting. The appellant had reached there after some time. The appellant called Mama of the victim girl. The Mama of the victim alongwith Jairam Thakur came there on his motorcycle and the mama took away the victim girl with him. The appellant and Jairam Thakur, Balram Thakur and Ritesh Thakur are mama in relation to the victim and Shivam Thakur is brother in relation to the victim. There was some dispute with the mother of the victim girl regarding taking of water. No molestation had taken place with the victim girl. In his cross-examination, he admitted that the appellant and Jairam Thakur, Balram Thakur and Ritesh Thakur were not present there and he had not given his

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statement to the police and the appellant and Balram Thakur, Jairam Thakur and Shivam had gone to the place of occurrence to save the victim girl and Ritesh Thakur was not present there.

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20. The learned trial court at Para-26 found that the victim in her written application has stated her age 16 years and after filing of the F.I.R., her statement was recorded before the Magistrate in which her age was mentioned as 16 years. The Investigating Officer procured a certificate from Project Kanya High School in which her date of birth is written as 08.07.2003. Date of occurrence of the case is 16.02.2021 and on the date of occurrence, she was aged about 17 years 07 months and 08 days which was below 18 years of age. Accordingly, the learned trial court found the Victim to be a child within the meaning of Section 2(1)(d) of POCSO Act.

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21. The learned trial court considered the oral and documentary evidences adduced on behalf of the defence at Para-27 and 28 and rejected the same in the following terms:

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“ 27. From the side of defence a number of documents have been filed and proved before the court. A document of Panchayat held on 06.09.2021 regarding some determination of shares for property is marked in Ext. D series. This document was prepared on 06.02.2021 in which thumb impression of mother of victim girl and various other persons is visible. Signature of informant of this case is also found on this document. The document was prepared by consent of the parties and after going through contents of this documents I find that the informant or her mother were satisfied from the decision of Panchayat and I do not find any effect of this document on the occurrence of this case. From the side of defence certified copy of FIR of Tundi P.S. Case No.31/2021 instituted under Section 302/34 of IPC against 11 named accused persons including informant and her husband. It appears that matter is under investigation in that case. This court is unable to connect the facts mentioned in FIR of Tundi P.S. Case No.31/2021 with occurrence of this case. From the evidences of defence side also it has been accepted that the victim girl was seen with her friend Suraj Pandey and accused persons of this case have seen her and they could not tolerate this fact and called her Mama Prakash Thakur. In view of defence side the victim was saved by accused persons but victim says that she was harassed, she was molested and she was sexually assaulted. This court does not find sufficient ground from the evidence of defence witnesses that accused persons have been falsely implicated due to previous enmity arising out of property dispute in the house of mother of the victim girl.

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28. So far as oral evidence of defence side is concerned I find that D.W.1 Prakash Thakur is Mama in relation of the victim girl and this fact is admitted. It has also been admitted that Prakash Thakur reached at the

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place of occurrence and brought the victim girl from the jungle. But the evidence of Prakash Thakur that Hareram Thakur has informed him on then he and Jairam Thakur reached there on a motorcycle appears not correct.”

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22. The learned trial court considered the evidences and materials available on record and summarized its findings at Para-29, 30, 31 and 32 which read as under:

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“ 29. On perusal of entire prosecution case and evidences available on record, I find that the FIR was instituted for the facts that the minor daughter of informant was returning from her school and in the way, accused persons Hareram Thakur, Balram Thakur, Shivam Thakur, Jairam Thakur and Ritesh Thakur took away her girl towards boundary wall of Dhulu Mahto. Accused persons started molesting the victim girl and also started talking in filthy language and thereafter they prepared video of the daughter of the informant. When the daughter objected the same then petitioner called out some other boys, then any how she saved herself and fled away from there. Petitioner and other boys threatened the daughter of the informant if she disclosed the matter to any one then they will kill her. It is Further alleged that video made by the boys was made viral by the boys from the Whatsapp. After institution of FIR statement of victim was recorded U/s 164 of Cr.P.C. In her statement victim has told that at about 02.00 P.M. on 16.02.2021 she was returning from her school after Saraswati Puja. In the way she was going while talking with her friend. In the meanwhile, five boys of her village Balram Thakur, Jairam Thakur, Shivam Thakur, Hareram Kumar and Ritesh Thakur and one unknown arrived there and they forced her and her friend to go towards jungle. These five boys have talked in filthy language to her and molested her. These persons have prepared a video with her friend. When she opposed them, they have called some other persons. After much difficulty she could escape from there. The video was made viral on social platform. All five boys have threatened her to kill. In her evidence as P.W. 1 victim says that on 16.02.2021 at about 02.00 afternoon after Saraswati Puja she was returning to her home from her school. In the way Suraj met him and she was talking with Suraj. In the meanwhile, five boys from her village namely Hareram Kumar, Balram Thakur, Shivam Thakur, Jairam Thakur and Ritesh started molesting her and they were talking her in filthy language. They have caught her hand and took towards jungle and given threatening to kill her. They have forced her to stand with Suraj and started making video. They have made that video viral. Hareram Thakur has prepared that video. In her cross-examination victim has said her Mama has brought her to her house on his motorcycle. She did not sustain any injury. Only Hareram Thakur has caught her hand and said “I Love You” to her. Nothing else was done with her. She has no knowledge that Hareram had informed her Mama Prakash Thakur regarding the occurrence. She has denied that after information to her Mama Prakash Thakur, he came there and rescued her from Suraj Pandey and took her to her house.

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30. On appreciation of entire evidences available on record, I find that foundational facts of this case that the victim was a child on the date of

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occurrence, she was returning from jungle while talking with her friend Suraj Pandey and accused persons caught her in the way and harassed her is established.

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31. Section 29 of the POCSO Act says that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. Section 29 of the POSCO Act fastens statutory presumption against the accused person and the reverse burden is on the accused. The accused could not prove his innocence in this case. In the reported case of Deewan Singh @ Kalu VS State of Uttarakhand [2022 0 Supreme (UK) 7] , it was held by the Hon’ble Uttrakhand High Court that “It is the basic principle of the criminal law that the prosecution has to prove its case beyond reasonable doubt. In case of doubt, the accused is always entitled to get benefit of it. The general principle of criminal law is presumption of innocence, until proven guilty. The POCSO Act makes specific provision with regard to sexual assault on a child. It deviates from the presumption of innocence. The Act makes provision for presumption of guilt.

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32. On appreciation of entire evidences available on record as discussed above, I find that there is no case that accused persons have committed the offence with common intention or they committed the offence in furtherance of common object of the unlawful assembly. I find that evidence of victim that on 16.02.2021 at about 02.00 p.m. five boys from her village namely Hareram Kumar, Balram Thakur, Shivam Thakur, Jairam Thakur and Ritesh started molesting her and they were talking her in filthy language. They have caught her hand and took towards jungle and given threatening to kill her. They have forced her to stand with Suraj and started making video. They have made that video viral. Hareram Thakur has prepared that video. Only Hareram Thakur has caught her hand and said “I Love You” to her. Nothing else was done with her appears trustworthy and inspires confidence of the court. Except Hareram other accused persons have not played any specific role but they were present there. Due to these facts, I find that charges against accused persons Ritesh Thakur, Shivam Thakur, Balram Thakur and Jairam Thakur U/s 354, 504, 506/34 of IPC and U/s 8 of POCSO Act remained doubtful and they are acquitted from all charges in this case. They are also relieved from all liabilities of their respective bail bonds. At the same time, I find that charges u/s 354, 504, 506/34 of IPC and U/s 8 of POCSO Act stand proved against accused Hareram Kumar @ Hareram Thakur. I find him guilty and convict him for commission of offences punishable u/s 354, 504 and 506 of IPC and U/s 8 of POCSO Act. His bail bond is canceled and he is taken into judicial custody.”

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23. As per the impugned judgment, the co-accused persons namely, Ritesh Thakur, Shivam Thakur, Balram Thakur and Jairam Thakur have been acquitted from the charges under Sections 354, 504, 506/34 of IPC and Section 8 of POCSO Act and the appellant only has been

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convicted by the learned trial court for the offences under Sections 354, 504 and 506 of IPC and Section 8 of POCSO Act.

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24. After going through the materials and evidences on record, this Court finds that FIR was instituted by the mother of the victim alleging that when the victim was returning home from her school on 16.02.2021 at about 02:00 P.M., on the way, the appellant and Balram Thakur, Shivam Kumar, Jairam Thakur and Ritesh Thakur took her away towards the boundary wall of Dhulu Mahto and they molested her and also said filthy words to her and thereafter, they prepared her video. When she objected, the appellant called some other boys. However, the victim saved herself anyhow and fled away from there. The appellant and other boys threatened the victim that if she will disclose the matter to anyone, they will kill her. Thereafter, the boys made the video viral through WhatsApp.

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25. This Court further finds that after institution of FIR, statements of the victim were recorded under Section 164 of CrPC (Exhibit-1) in which she stated that on 16.02.2021, when she was returning home from her school after Saraswati Puja at about 02.00 P.M. talking with her friend, on the way, 5 five boys of her village namely, Balram Thakur, Jairam Thakur, Shivam Thakur, Hareram Kumar, Ritesh Thakur and one unknown boy came there and they took her and her friend Suraj Pandey towards the jungle and molested her and said filthy words to her. Thereafter, they forcibly prepared her video with her friend. When she protested, they called some boys and after much difficulty, she could escape from there. Later on, they made her video viral on the social platform. All the five boys had threatened to kill her.

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26. This Court further finds that the victim has been examined as PW-1. In her cross-examination, she admitted that Prakash Thakur (DW-1) is her Mama and when she had gone in the jungle, Prakash Thakur had brought her to back to her house on his motorcycle. The house of her Mama is at Kolhar and the accused persons are entitled for their share in property of her Mama. She further admitted that the viral video is not available with her or her family members. She had

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not sustained any injury and the accused persons had not torn her clothes. Only the appellant had caught her hand and had said “I Love You” to her and no other indecent act was committed with her.

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27. This Court finds that the victim in her statements recorded under Section 164 of CrPC did not allege any specific overt act against the appellant and did not allege specifically that the appellant had prepared her video with her friend Suraj Pandey. This Court finds that the victim in her statement made under Section 164 Cr.P.C has stated that on 16.02.2021 at around 2 p.m., she was going back home from her school and while going back, she was talking to her friend and five boys including the appellant and one unknown boy took her and her friend Suraj Pandey to jungle and misbehaved with her and used filthy words. She has further stated that all five persons prepared a video of the victim and her friend Suraj Pandey and upon opposition, they called other boys and with great difficulty, she ran away. She further stated that later on the video became viral in the social platform and all five boys threatened to kill her.

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28. PW-2 is the mother and PW-3 is the father of the victim and both have stated in their evidence that they were narrated about the incident by the victim and therefore, both are hearsay witnesses. PW-2 in her cross-examination, admitted that when she had met the victim, there was no injury on her person and she further admitted that she cannot produce the viral video of her daughter with Suraj Pandey. PW-3 in his examination-in-chief deposed that the occurrence had taken place on the day of Saraswati Puja in 2021 and he was in Kolkata in connection with his work

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29. This Court further finds that PW-4 is the Investigating Officer of the case and in his cross-examination, he admitted that the victim and her mother had not given any video clip to him. He also admitted that Prakash Thakur had given his statement that on 16.02.2021 at about 13.50 hours that Hareram Thakur (appellant) had informed him on phone that Suraj Pandey and the victim girl were talking in the Koldih jungle and some boys had surrounded them and P.W.-4 was asked to go there quickly. When P.W.-4 went there, Suraj Pandey had

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fled away and he had brought the victim back and had handed over her to her parents. He further admitted that in course of investigation, except the victim, he had not found any other witness with regard to touching and molesting the victim by the accused persons.

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30. DW-1 is the mama of the victim who had brought her to her house from the place of occurrence and he has clearly stated in his evidence that he was informed by Hareram Thakur (the appellant) and then only, he had gone to the place of occurrence and had rescued the victim.

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31. DW-2 has corroborated the version of DW-1 by stating that the appellant had called the Mama of the victim girl and thereafter, Mama of the victim girl had gone to the jungle with Jairam Thakur and had brought the victim girl with him. In his cross-examination, he stated that nothing wrong had been committed with the victim girl and the appellant had called in his presence and when he was standing there, the Mama of the victim had come.

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32. This Court further finds that the most important witness- Suraj Pandey, who happens to be one of the victims and eye witness to the occurrence, has not been examined by the prosecution. This Court is of the considered view that non-examination of Suraj Pandey and nonproduction of the alleged video during investigation or in court are serious infirmities in the prosecution case. Both these facts coupled with the evidence of DW-1 who is maternal uncle (mama) of the victim girl makes the prosecution case doubtful against the appellant. Further, there is no material on record to show that the appellant had sexually assaulted the victim girl. Rather, it was the appellant who called the mama (D.W-1) to come and take the victim from jungle. This Court finds that the victim in her statement under Section 164 Cr.P.C has made general allegations against all the accused and no specific allegation has been made against the appellant with regard to preparation of video or any assault or utterance of any words by the appellant. She stated that she ran away from the place of occurrence. However, in the evidence it has clearly come on record that it was the

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appellant who called D.W.-1 (mama of the victim) who rescued the victim from the jungle.

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33. The learned trial court has recorded a finding in Paragraph No.30 that on appreciation of entire evidences, the court found that the foundational fact of the case that the victim was a child on the date of occurrence, she was returning from jungle while talking with her friend Suraj Pandey and the accused persons caught her in the way and harassed her is established. Paragraph No.30 of the learned trial court judgment is quoted as under:

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“30. On appreciation of entire evidences available on record, I find that foundational facts of this case that the victim was a child on the date of occurrence, she was returning from jungle while talking with her friend Suraj Pandey and accused persons caught her in the way and harassed her is established.”

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34. This Court finds that such finding is contrary to the case of the prosecution. Rather, the case of the prosecution was that when the victim was coming back from school while talking with her friend, five accused persons took her and her friend Suraj Pandey to jungle and then the alleged incident occurred.

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35. This Court further finds that the learned court in Paragraph No.28 of the judgment has recorded and discussed the evidence of the D.W.-1 Prakash Thakur (mama) and refused to believe his statement that the appellant had informed him and then D.W-1 and Jairam Thakur reached at the place of occurrence on a motorcycle, which did not appear to be correct to the learned court. Paragraph No.28 of the learned trial court judgment is quoted as under:

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“ 28. So far as oral evidence of defence side is concerned, I find that D.W.1 Prakash Thakur is Mama in relation of the victim girl and this fact is admitted. It has also been admitted that Prakash Thakur reached at the place of occurrence and brought the victim girl from the jungle. But the evidence of Prakash Thakur that Hareram Thakur has informed him on then he and Jairam Thakur reached there on a motorcycle appears not correct.”

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36. This Court finds that upon perusal of the material on record including the cross-examination of the victim and also the evidence of

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the investigating officer of the case read with the evidence of D.W.-1 and also D.W.-2 and their cross-examinations, it has been duly established that it was the appellant who had called D.W.-1 (mama of the victim) and upon the call of the appellant D.W-1 reached the place of occurrence and brought her back home. Even the victim has supported this fact during her cross examination. This Court is of the considered view that the learned trial court has wrongly discarded the evidence of the defence witness D.W.-1.

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37. This Court further finds that after having recorded the aforesaid erroneous findings, the learned trial court was of the view that the foundational facts to draw presumption under Section 29 of POCSO Act was duly satisfied and by taking aid of POCSO Act regarding statutory presumption, convicted the appellant vide paragraph 32 as quoted above. The learned trial court recorded that the appellant had prepared the video without considering that the video was never produced and could not be found by the investigating officer of the case even during investigation and none of the witnesses claimed that they had seen the video or they could produce the video. The learned trial court further recorded that amongst all the accused persons only the appellant caught the hand of the victim and said “I Love You” . The learned trial court clearly recorded that nothing else was done to the victim and ultimately convicted the appellant keeping in mind section 29 of the POCSO Act as discussed in paragraph 31 of the impugned judgement. This Court further finds that there is much improvement in the case of the victim from what was recorded under Section 164 of Cr.P.C and the contents of section 164 statement as mentioned above does not make any specific allegation against the appellant nor any overt act has been alleged specifically by the appellant. The evidences on record creates a doubt in the prosecution case.

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38. This court is of the considered view that the foundational facts to draw presumption against the appellant was not proved beyond reasonable doubt and accordingly, the appellant could not have been convicted with the aid of Section 29 POCSO Act. Section 29 of the

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POCSO Act provides that the court shall presume that the accused had committed that offence for which he is charged with until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused under section 29 of the POCSO Act will come into play and can be rebutted by discrediting the prosecution witnesses through cross-examination and demonstrating the gaps in the prosecution version or improbability of the incident or lead defence evidence in order to rebut the presumption by way of preponderance of probability.

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39. Keeping in view the totality of the facts and circumstances of the case, this Court is of the view that the foundational facts could not be proved by the prosecution beyond reasonable doubt when read with the evidences on record and therefore, there was no occasion to convict the appellant even by taking the aid of presumption in terms of Section 29 of the POCSO Act.

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40. Considering the entire facts and circumstances of the case, this Court finds that the aforesaid aspects of the case have not been properly considered by the learned trial court and therefore, the impugned judgment passed by the learned trial court is perverse and legally not sustainable and calls for interference to prevent miscarriage of justice.

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41. Accordingly, the judgment of conviction dated 03.06.2023 and the order of sentence dated 05.06.2023 passed by the learned Special Judge, POCSO Act, Dhanbad in Special (POCSO) Case No.36 of 2021, arising out of Tundi P.S. Case No.16 of 2021, is set-aside and the appellant- Hareram Kumar @ Hareram Thakur is acquitted from the charges under Section 8 of POCSO Act and Sections 354, 504 and 506 of IPC.

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42. The bailors of the appellant are discharged from the liability of their bail bonds.

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43. Accordingly, this criminal appeal is allowed.

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44. Let a copy of this judgment be communicated to the learned trial court through FAX/E-mail.

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(Anubha Rawat Choudhary, J.)

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Saurav/-