Post conviction in NDPS case, Jharkhand residents are in Buxer and Ara jails, High Court to hear their appeal in August

The 84 page long judgement of the trial court by Additional Sessions Judge-VIII, Bhojpur refers to four accused persons namely, 1) Bijendra Kumar Rai (Bihar), Nav Kumar Ojha (Jharkhand), Shankar Yadav  (Jharkhand) and Pritam Lakda (Jharkhand). Notably, all the four accused persons were acquitted of conspiracy charges (Section 29 of  Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985) by the trial court. But Bijendra Kumar Rai (Bihar), the kingpin was given the benefit of doubt, and acquitted by the trial court, and the remaining three-truck owner, driver and Khalasi, the cleaner were convicted under Sections 20(b) (ii) (C) and 25 of NDPS Act, 1985. The appeal related to conviction over nine quintals of ganja came up for hearing before Patna High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar on May 9, 2024. 

 

The order records that the Advocates for Shankar Yadav, Pritam Lakra and Nav Kumar Ojha, the Appellants submitted that "the informant is the Investigator of this case which vitiates the entire prosecution case. It has further been submitted that none of the mandatory provisions of the NDPS Act has been complied with." The argument was submitted by the counsel for the second appellant. 

 

The High Court's order reads: "We have also been informed that the wife of another co-convict is mentally ill and, therefore, no appeal has been preferred on his behalf as yet. Apart from this, this Court has been informed that the main accused of this case has been acquitted on a specious plea which is not sustainable in the eyes of law. Though, taking into account the quantity of narcotics recovered from a vehicle of which the appellants are driver and cleaner respectively, we are not inclined to suspend their sentence presently. The prayer is rejected. However, we direct the registry to prepare the paper book urgently and get this case listed for final hearing in the second week of August commencing from 5th of August, 2024. We have said so for the reason that one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens." 

 

The second appellant, a resident of Jharkhand is in Buxer jail. The first appellant is in Ara jail and is represented by Advocate Ravindra Kumar. Advocate Dr. Gopal Krishna  represents the second appellant. He also represents Nav Kumar Ojha, the third convict on humanitarian ground because he is without any legal assistance due to extreme poverty and unsound mental health of his wife. The third convict, a resident of Jharkhand is in Buxer jail as well.

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

 

The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."

The High Court will hear the appeal urgently in the second week of August 2024 because "one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens."  

 

Judgment of Additional Sessions Judge, F.T.C-V, Sheikhpura in Section 304(B) case set aside: Justice Sunil Kumar Panwar

In Kaushaliya Devi Vs. State of Bihar, Justice Sunil Kumar Panwar of Patna High Court set aside the judgment of conviction dated December 5, 2006 and order of sentence dated December 7, 2006 passed by Additional Sessions Judge, F.T.C-V, Sheikhpura. The High Court delivered the judgement on May 2, 2024. The benefits of doubt was given to the appellants. The judgement acquitted all the appellants of all the charges. The appellants were on bail all along. They were discharged from the liabilities of the bail bonds.

The appeal was filed against the judgment of conviction and order of sentence passed by Additional Sessions Judge, F.T.C-V, Sheikhpura in connection with Sessions Case No. 404 of 1998 (Trial No. 124/2006), arising out of Barbigha P.S. Case No. 35 of 1997, whereby and whereunder the appellants were found guilty and convicted for the offences punishable under Section 304(B) of the Indian Penal Code (IPC) and they were sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304(B).

Section 304 B deals with "dowry death". It reads: "(1) Where the death of a woman is caused by any burns or bodily injury oroccurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her

husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 

The prosecution case as per the F.I.R was that the informant Kapil Mahton gave a written information on March 3, 1997 to the effect that his daughter Sushila Devi (deceased) was married with Binod Mahto about three years before the date of filing the present F.I.R. After marriage, all the F.I.R named accused persons started torturing his daughter (deceased) for demand of dowry. She came many times at her parental house and narrated the same to the parents and other family members but every time, matter was consummated with the interventions of the family members of the deceased. It is further alleged that fort night prior to the complaint, the father-in-law of the deceased came to the informant’s house and informed that his daughter had fled away from her matrimonial house. The informant thereafter started searching his daughter and during search, he came to know that a lady about 25 years old had died consuming poison near bus stand. The informant went to the photo- studio shop and identified the photograph of that lady to be his daughter Sushila Devi. The informant alleged that due to torture, his daughter has committed suicide.

The case was registered against the appellants and others under Sections 498(A), 306/34 of the IPC. After completion of the investigation, charge-sheet was submitted and thereafter cognizance was taken and the case was committed to the Court of Sessions for trial.

During the course of trial, altogether twelve witnesses were examined on behalf of the prosecution.

The appellants' counsel submitted that appellants was innocent and they were falsely implicated in this case since they happens to be the mother-in-law and father-in-law of the deceased. The prosecution claimed demand of dowry and torture for non-fulfillment of the dowry demand but they failed to produce any evidence with regard to any torture or demand of dowry prior to the date of occurrence. The informant claimed that soon after the marriage, his daughter was tortured for non-fulfillment of dowry demand but he had not filed any complaint regarding the torture and demand of dowry before any authority nor any panchayati was held in this regard which suggests that a concocted story was implanted to falsely implicate the appellants in this case.

The Court observed that "most of the prosecution witnesses are either highly interested or hearsay witnesses." It also noted that "the prosecution has also failed to prove that the deceased died within seven years of her marriage as the date of marriage has not been mentioned in the F.I.R."

The Court records that "from perusal of the records and on going through the evidences, it appears that none of the prosecution witnesses have seen the occurrence and most of the witnesses are related to the informant and are highly interested witnesses. The prosecution has not brought on record any proof with regard to the torture and demand of dowry prior to the death of the deceased. The husband of the deceased had also not been made accused. Whatever have been stated by the witnesses in their examinations-in-chief was not contradicted in absence of evidence of Investigating Officer. The right of bringing on record the contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused and by showing that, the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the Court that the witness is not reliable witness." 

The Court observed: "It is also pertinent to mention here that in order to establish the offence under Section 304(B) of the Indian Penal Code, the prosecution is obliged to prove that death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty must be in connection with any demand of dowry." 

It further observed" "If the prosecution proves the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. Such presumption is rebuttable and the onus to rebut shifts on the accused persons. It is evident that there is nothing on record to show that soon before the death, there was any demand or torture by the appellants which is a necessary ingredient to bring the accused under Section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code clearly says that in case of abnormal death, if it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry, such death can be called dowry death. It is evident from the discussions made that necessary ingredient has not been established by the prosecution to bring the case within the ambit of Section 304-B of the Indian Penal Code." 

The Court pointed out that "If the prosecution fails to establish the aforesaid ingredient then presumption under Section 113-B of the Evidence Act does not apply and in such case the burden does not shift to the accused persons to rebut the presumption under the law. Since the ingredient of Section 304-B is absent on the record, in my view, the appellants cannot be convicted under Section 304-B of the Indian Penal Code."

The judgement concluded that "it is evident that the circumstantial evidence which has been brought on record, as discussed above, is not sufficient to come to a conclusion that the appellants committed dowry death due to non-fulfillment of dowry demand. It is well established rule of law that in case of circumstantial evidence, chain must be complete to establish the guilt of the accused persons. Hence, the prosecution has failed to establish its case beyond the shadow of all reasonable doubts and the appellants are entitled to get the benefits of doubt."

Judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur in 1987 case of dacoity set aside: Justice Rajesh Kumar Verma

In Banshidhar Sing Vs. State of Bihar, Justice Rajesh Kumar Verma of Patna High Court set aside the judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur.  The appellant was  acquitted from all the charges levelled against him. The Court's direction reads: "Let the appellant be set free at once, if he is not warranted in any other case." In its judgement dated May 6, 2024, the appeal filed by the appellant was allowed. 

It was pending in the High Court since January 2013. It was one of the 26386 are 10 to 20 years old cases pending in the Court. Notably, a division bench of the Court had acquitted 8 convicted persons by judgment dated May 6, 1993 in Jagnarayan Singh and Others Vs. State of Bihar, a related case. The genesis of the both cases was the same. The judgement in the case was delivered exactly 31 years after the acquittal of 8 persons.  In Patna High Court, a total of 3058 cases are over 30 years old,   

The appellant was convicted under Section 396 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.5,000/- by the sentence dated December 18, 2012  trial Court pursuant to the judgment dated December 17, 2012. The prosecution case was that an armed dacoity was committed in the house of the informant situated in village Basantpur, Ara Muffasil, Bhojpur on November 22, 1987 in night. A number of dacoits armed with big Double Barrel Guns, Gun and Small country Pistols broke open the door, entered in the house and looted properties worth Rs. 40,000/. Visheshwar Rai, informant's grandfather told him that his brother Bhola Rai fell down due to bullet shot. Bhola told that “Kameshwar Singh shot fired him". Bhola was shot dead.

Section 396 of IPC deals with "Dacoity with murder" It reads: "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

The genesis of case lies in the FIR bearing Ara Muffasil P.S.Case No.125 of 1987 which was registered on November 23, 1987 based on the fardbeyan of informant, namely, Ram Dular Yadav against 9 named accused persons including the appellant. The prosecution after completion of investigation, chargesheet against eight accused persons (except the appellant) was submitted on February 23, 1988 which stated that the appellant was as absconder and the cognizance was taken for the offence punishable under Section 396 of Indian Penal Code. The case was committed for split trial by separating the case of this appellant, Yogendra Singh and other suspects against whom the investigation was still going on and accordingly S.Tr.No.436 of 1988 was registered. The 8 accused persons were convicted by the judgment dated March 19, 1990 passed by the 7th A.D.J., Ara and each accused were sentenced to undergo rigorous imprisonment for life. The convicted eight accused persons preferred Cr.Appeal before the Patna High Court vide Cr. Appeal No. 179 of 1990 (D.B.) (Jagnarayan Singh and Others Vs. State of Bihar). The Division Bench of the Court after hearing the parties had acquitted all the 8 convicted persons by allowing the appeal vide order/judgment dated May 6, 1993.

The Investigating Officer filed a petition before the Court concerned to the separate trial on February 23, 1988 for the permission to continue further investigation and the same was accorded by the C.J.M., Ara vide order on the same day. The supplementary Charge-sheet vide Charge-sheet dated November 15, 1989 was submitted under Section 396 of I.P.C. against the appellant. The case was committed for sessions trial. The appellant pleaded his innocence in respect to contents of the charge as framed. The trial of the appellant commenced. The prosecution examined two witnesses. The evidence of the prosecution had been closed on July 20, 2012. The statement of appellant accused was recorded on July 24, 2012 under Section 313. The appellant stated about his innocence and totally denied the allegation regarding alleged occurrence and the appellant adduced the judgment passed by the Division Bench of this Court in Cr.Appeal No. 179 of 1990 arising out from Sessions Trial No. 436/1988.

The appellant's counsel submitted that the defence raised the contention that both examined witnesses are full brother and also interested witnesses, the other witnesses mentioned in the Fardbeyan are not examined, an injured person namely Bhushan Yadav also has not been examined, which casts serious doubt on the prosecution version, Investigating Officer and Doctor of the case are not examined, in absence of medical report, a case U/S 396 of IPC cannot be proved as the cause of death of Bhola Rai has not been proved , the document of the case of Session Trial No. 436/1988 cannot be admissible permissible as evidence in this case, and in Cr. Appeal No. 179/1990. The High Court acquitted the other accused person of this case and also observed that the Fardbeyan is ante-dated, and the identification of the accused person as participants in the alleged dacoity by the eye witnesses who are all of the same family does not inspire confidence, and the entire prosecution came has no leg to stand but the learned trial court gave weightage of the plea as advanced by the prosecution in response to the aforesaid contention of the defence. 

The appellant's counsel submitted that both the witnesses are belonging to same family. The explanation of injury caused to Bhola Rai, Bhushan Yadav and son-in-law of Bhola could not be substantiated by the evidence of the prosecution witnesses and in the facts and circumstances, the investigating officer of the case who had taken part in the investigation and submitted the charge sheets was necessitated for the purpose of corroboration the location and situation of the house of the informant but the Investigating Officer was not examined in the present case and further corroboration in the present case with respect to postmortem of alleged deceased is required, which test amounts the examination of doctor who conducted the postmortem for proper explanation of the injury but the Doctor was not examined in the present case and in view of the aforesaid, the inquest seizure list and postmortem report have not been proved and it would cause prejudice to the appellant.

The counsel for the appellant relied upon the judgment of the Supreme Court in the case of Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC OnLine SC 80. The paragraph Nos.-28,39 and 40 of the said judgment reads: 

“28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law’. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence
has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the
quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses
and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a
conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
 (i) Wholly reliable;  (ii) Wholly unreliable; (iii) Neither wholly reliable nor
wholly unreliable. 

The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s).
However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.

(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.”

The counsel for the appellant pointed out that the genesis of the Cr. Appeal No. 179/1990 which arose from the S.Tr.No. 436 of 1988 (arising out of Ara Muffasil P.S.Case No.125 of 1987)  was the fardbeyan as recorded and upon the same FIR was registered. The genesis of the S.Tr.No.22 of 1990 was the same as the Fardbeyan upon which the same FIR has been registered and the judgment passed in the trial is under challenge in the present Cr. Appeal No. 38/2013. The Division Bench of the High Court held that the said fardbeyan is ante dated and further impeached the credibility of the identification of the named accused in the FIR which also includes this appellant. 

The Court recorded that "the judgment passed in Cr. Appeal No. 179 of 1990 would operate as estoppel in regard all finding which are essential to sustain the judgment and both prosecution witnesses are not trustworthy witnesses and so the prosecution has failed to prove the case beyond reasonable doubt."

Justice Vipul Pancholi led bench sets aside judgement of Additional Sessions Judge, Rosera (Samastipur) in murder case

In Kanchan Kumari v. State of Bihar, the bench of Justices Vipul M. Pancholi and Chandra Shekhar Jha set aside the judgement of Additional Sessions Judge, Rosera (Samastipur) which convicted the appellants Ravindra Kumar @ Lalo and Kanchan Kumari for the offences punishable under Sections 302/34 and 302/120B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, the appellants Ravindra Kumar @ Lalo and Kanchan Kumari have to undergo RI for four months. The appellants were also convicted for the offences punishable under Sections 201/34 of the IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/- each and in default of payment of fine, the appellants have to undergo RI for one month. All the sentences were to run concurrently. The judgement of the division bench of the High Court was authored by Justice Pancholi was delivered on April 19, 2024.

The informant Binod Kumar gave a written complaint wherein Manoj Kumar (younger brother of the informant) and Mukesh Kumar (brother-in-law of Manoj Kumar) had been living at his house since long. On September 17, 2016, Mukesh Kumar (deceased) received a phone call and went outside. As a dance programme was organized on the occasion of Vishwakarma Puja at Basauna Chowk, the informant did not pay attention as to where he had gone. The informant got information through phone that dead body of Mukesh Kumar is lying in the water beside the road ahead of Utkramit Madhya Vidyalaya, Pakahi. The dead body was brought to Shahpur Chowk.

The written complaint given by the informant had given the names of four accused and also pointed out the motive for committing murder of deceased Mukesh Kumar. 

The judgement of the Patna High Court recorded that it was surprising that after preliminary investigation the investigating agency exonerated the said four persons who were named in the FIR and only on the basis of secret information given by the informer, all the present appellants have been implicated. 

Admittedly, there was no eye witness to the occurrence in question. The case of the prosecution rested on circumstantial evidence. 

Notably, none of the prosecution witnesses deposed against the appellants-accused except the Investigating Officer. None of the prosecution witnesses had seen the appellants lastly in company with the deceased. Even the weapon, i.e., the knife, which was recovered from the house of one of the appellants, was not sent for necessary analysis to FSL. The said aspect is admitted by the Investigating Officer.

The Trial Court had convicted the appellants only relying upon the deposition given by the Investigating Officer. The prosecution failed to complete the chain of circumstance from which it can be established that the appellants have killed the deceased despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. 

The case of the prosecution was that as the deceased Mukesh Kumar was having love affair with one of the appellant Kanchan Kumari, with the help of the other two co-accused the deceased Mukesh Kumar has been killed. However, the prosecution has failed to prove by leading cogent evidence before the Court that Kanchan Kumari, the  appellant was having relation with the deceased. The said aspect has been admitted by the Investigating Officer.

The High Court re-appreciated the entire evidence led by the prosecution before the Trial Court. It would emerge from the record that there is no eye witness to the occurrence in question and case of the prosecution rests on circumstantial evidence. It noted that as per the deposition given by the Investigating Officer, on the basis of secret information given by the informer of the police, it was revealed that the deceased Mukesh Kumar was having love affair with Kanchan Kumari, one of the appellants and all the appellants in connivance with each other killed the deceased. 

The prosecution failed to examine the witness with a view to prove that deceased Mukesh Kumar was
having love affair with Kanchan Kumari, one of the appellants. It emerges that the prosecution failed to prove the motive on the part of the accused to commit the alleged offences. 

Admittedly it is a case of circumstantial evidence. It is well settled that in case of circumstantial evidence, it is the duty of the prosecution to complete the chain of circumstance from which it can be established before the Court that the appellants/accused have committed the alleged offences. 

The he doctor who had conducted post-mortem on the dead body of the deceased found seven injuries out of which six are sharp cut wound. He opined that death was due to hemorrhage and shock caused by above mentioned injuries. He stated that if the knife blow is given, there would be a penetrating wound and he did not find any penetrating wound on the dead body of the deceased. 

The Court observed: "though the Investigating Officer collected the CDR of the concerned mobile phones and produced before the Court, the certification under Section 65B of Evidence Act was not produced before the Court." 

It also observed that "in the case of circumstantial evidence, motive assumes importance. In the present case, as discussed hereinabove, the prosecution has failed to prove the motive on the part of the appellants to kill the deceased by leading cogent evidence before the Trial Court. The medical evidence also does not support the case of the prosecution. Thus, from the aforesaid evidence, it can be said that only on the basis of the confessional statement of the accused and the CDR of the mobile phones, the appellants have been convicted by the Trial Court."

The judgement concluded: "we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. Hence, the same is required to be quashed and set aside." 

The direction of the Court reads: Since appellants, namely, Ravindra Singh @Ravindra Kumar @ Lalo and Kanchan Kumari in Criminal Appeal (DB) No.98 of 2019 and Criminal Appeal (DB) No.291 of 2019 respectively are in jail, they are directed to be released from custody forthwith, if their presence is not required in any other case." It also directed that Bipin Prasad Singh @ Bipin Singh, the appellant, in Criminal Appeal (DB) No.1480 of 2018 who is on bail, is discharged from the liabilities of his bail bonds.

 

High Court sets aside judgement of Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda in "a case of a gun-shot marriage"

Patna High Court's bench of Justices Ashutosh Kumar and Jitendra Kumar set aside the judgment and order of conviction by Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda and acquitted Prabhas Singh, the appellant of the charges leveled against him. 

The victim had lodged the written report addressed to the Officer-in-Charge of Mahila Police Station, Biharsharif on October 24, 2019, which led to the registration of Mahila P.S. Case No. 175 of 2019 on the same day under Sections 376, 313, 506 and 34 of the I.P.C. and Section 6 of the POCSO Act, 2012. 

Section 376 of IPC provides punishment for rape. The offender is "punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." 

Section 313 deals with punishment for the offence of "causing miscarriage without woman's consent" . The offender is punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is non-bailable and triable by a Court of Session.

Section 506 deals with the punishment for criminal intimidation. The offender is punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Section 34 deals with acts done by several persons in furtherance of common intention.

Section 6 of POCSO Act provides" punishment for aggravated penetrative sexual assault". The offencer is punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. The fine imposed is required to be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

The Court has recorded that "no effort was made by the Investigator to know about the age of the victim, especially at the time of the first encounter, when she had become pregnant." The age came to light from the the matriculation certificate of the victim, which showed her date of birth to be April 1, 2003. It emerged that the victim was a 16 year old minor when she had met the appellant for the first time and had continued with her relationship for a very long time during her minority. 

The marriage was performed after the offence of rape was lodged. The Court observed: "Prima facie, it appears to be a case of a gun-shot marriage and, thereafter, that marriage having failed for some reason or the other." The Court inferred that "the victim having voluntarily accepted the matrimonial relationship with the appellant and staying in her matrimonial home for three years, which fact was clearly admitted by her in her deposition before the Trial Court and there being no investigation about the minority of the victim, we do not find it to be a case of rape." It pointed out that "there is no proof of the fact that the relationship was consummated when the victim was only a minor and had not crossed over the date of majority." The Court concluded, "we find the accusation against the appellant to be unworthy of complete reliance. We, therefore, cannot put our imprimatur to the opinion arrived at by the Trial Court."

The Court observed that "the victim had a field day when she approbated and reprobated, depending upon her equation with the appellant and his family members." It has recorded that "the victim has herself stated under Section 164 Cr.P.C. as also before the Trial Court that she got married to the appellant,  it was an important fact to have been disclosed before the Investigator as also before the Trial Court. The very factum of marriage and the victim staying in her matrimonial home for more than two years would have made the allegations absolutely false."

The Court has noted that the victim "has also admitted that she became pregnant because of the association with the appellant, but when the appellant refused to marry her, she lodged a case. After the case was lodged, the appellant married her and she was happily residing in her matrimonial home."

The judgement notes that "all the while that she made statement before the Magistrate under Section 164 Cr.P.C. and in her deposition before the Trial Court, she had referred to the appellant as having plighted his troth to her. There was obviously love relationship between the victim and the appellant."

The Court's direction reads: "the appellant/Prabhas Singh is in jail, he is directed to be released from jail forthwith, if his detention is not required in any other case."

Notably, there is a glaring proofing error in the opening sentence of the judgement. It reads: "The sole appellant/Prabhas Singh has been convicted for the offence under Section 376 (3) of the Protection of Children from Sexual Offences Act, 2012." Instead of referring to Section 376 (3) of the IPC, it inadvertently refers to POCSO Act. The fact is that there are only 46 Sections in the POCSO Act.  Section 376 (3) of IPC which was inserted in 2018 states that "Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim."  

Chief Justice led bench dismisses PIL seeking implementation of Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act

On May 1, 2024, the division bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar dismissed a writ petition praying for implementation the Street Vendor (Protection of Livelihood and Regulation of Street Vending) Act, 2014 as "unnecessary petition". It was filed filed by Qamre Alam and Md. Qayum Uddin.

The judgement in Qamre Alam v. State of Bihar drew on the counter affidavit which provided details of the steps being taken by the Patna Municipal Corporation for implementation of the Street Vending Act. 

The judgement recalled an earlier petition filed by the very same writ petitioners numbered as CWJC No. 17256 of 2019 (Patna Junction Thela Footpath Dukandar Sangh v. State of Bihar) which was disposed of, granting liberty to the petitioners to assist the Court in another writ petition pending on the same subject matter numbered as CWJC No. 15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar). The perusal of the judgement in  the former case which provides the names of 119 petitioners does not show the name of Qamre Alam and Md. Qayum Uddin.  

The judgement of Chief Justice Sanjay Karol and Justice S. Kumar bench records that "Patna Junction Street Vendors Association themselves have filed CWJC No. 17976 of 2019, for the same subject matter. There is hence no requirement for a public spirited person to agitate the cause." The fact is that this case was disposed of without expressing "any opinion on the merits of the matter" on November 23, 2020.

The petitioners had prayed for the following relief(s):-
(i) For issuance of writ of mandamus commanding upon the respondents to implement the prevision of street vendors (Protection of livelihood and Regulation of Street Vending Act 2014 and after survey the town vending committee shall ensure that all existing street Vendors identified in the survey are accommodated in the Vending Zone (which is not declared till date) in accordance with the plan for Street Vending and the holding capacity of the Vending Zone.
(ii) For issuance of writ of mandamus commanding upon the respondents not to disturb/remove the from existing place of business Street Vendors from existing place of business in the name of Anti encroachment Drives as they are earning their livelihood for themselves and also for their family members. Since last several years as despite several insurance given by the respondents, no Street Vending Zone has been specific and they have been removed one place to another place in the name of the Anti encroachment drive.
(iii) For issuance of writ of Mandamus to Specific the Vending Zone for the Street Vendors.
(iv) For issuance of writ of mandamus commanding upon the respondents to ensure that all the Street Vendors who are earning their livelihood from place situated near the Patna Junction adjacent to Veena Picture Hall, Patna are accommodated in the Vending Zone after specifying the place of Vending Zone.
(v) For the direction to the respondents not to disturb the Street Venders who are earning their livelihood from the place at Patna Junction near Veena Picture Hall, Patna prior to fixing the place as Vendor Zone and accommodating them in the said Vendor Zone.
(vi) For the other reliefs in facts & circumstances of the case.”

The petition was disposed of in the following terms:-
(a) Petitioners’ representation, which is pending before the appropriate authority, shall be considered and decided in accordance with law within a period of four weeks from today;
(b) Liberty is reserved to the petitioner to take recourse to such remedy, pursuant to the decision taken on such representation, including approaching this Court afresh on same and subsequent cause of action, if so required and desired;
(c) We have not expressed any opinion on the merits of the matter. 

With regard to the latter case CWJC No.15475 of 2016 (Vikash Chandra Guddu Baba Vs. the State of Bihar), the judgement of the bench of Chief Justice Vinod Chandran and Justice Partha Sarthy dated September 22, 2023 makes it crystal clear that the writ petition was closed with certain observations. The observation reads: "The writ petition has been pending since 2016 and it is submitted by the petitioner in person that on the basis of orders passed by this court many of the encroachments have been removed." It recorded that Prabhat Kumar Verma, the AAG-3 informed the Court that "the State and the District Administration are relentlessly pursuing the matter and ensuring that no difficulty is caused to the public. We hope that the State does not let up on the removal of such encroachments wherever it is found and also ensure that there is no further occupation of public place by trespassers."

Notably, on October 4, 2017, the bench of Chief Justice Rajendra Menon and Anil Kumar Upadhyay had passed an order in Vikash Chandra Guddu Baba v. State of Bihar wherein it recorded that "the Patna Municipal Corporation in C.W.J.C. No. 2442 of 2017 has made statement on oath before this Court that they are proposing to create vending zones in the entire city of Patna and thereafter remove the encroachers to the said zone, list the matter for analogous hearing along with C.W.J.C. No. 2442 of 2017 and C.W.J.C. No. 3923 of 2016. Meanwhile, further action taken should be indicated to this Court and a report filed." C.W.J.C. No. 2442 of 2017 refers to Krishna Kumar Singh v. State of Bihar which was dismissed on April 21, 2023. The dismissal order reads:"Though it is submitted that Advocate Satya Prakash has expired, Vakalanama is also seen to be filed by Advocate Mr. Sachin Kumar. Consistently, none appears for the petitioner. As such, writ petition stands dismissed for default" after listing/hearing it on 30 occasions.  

The latter case C.W.J.C. No. 3923 of 2016 refers to Zila Footpath Dukandar Sangh, Muzaffarpur v. State of Bihar, which was disposed by the bench of Chief Justice Sanjay Karol and Justices Dinesh Kumar Singh on November 15, 2019. The recorded that Yogesh Chandra Verma, senior counsel stated that "out of 142, only 58 vendors have been issued identity cards and the rights of the remaining vendors remain denied." 

The Court's judgement reads: "Having considered the material placed on record in its entirety, we are of the considered view that interest of justice will be best met if each one of the remaining vendors were to approach the authority for redressal of their surviving grievances, including non-implementation or incomplete implementation of the provision of Sections-3 and 4 of The Street Vendors (Protection of Livelihood And Regulation Of Street Vending) Act, 2014." It observed: "We are sure that on receipt of such request, cases of each one of the remaining vendors shall be considered by the appropriate authority in accordance with law expeditiously and preferably within a period of 3 months from today. Mr. Prasoon Sinha, appearing for the respondent Municipal Corporation, ensures of the same. In view of the aforesaid directions, we dispose of the present petition reserving liberty to the remaining vendors to seek appropriate remedies in accordance with law, including approaching this Court by way of separate petitions" after listing/hearing the case on 33 occasions.