Patna High Court
Sonu Keshri vs The State Of Bihar on 18 November, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.391 of 2023
Arising Out of PS. Case No.-118 Year-2020 Thana- MAHILA PS District- Buxar
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Sonu Keshri, Son of Birendra Prasad Keshri, R/V- Chousa Beach Bazar, P.S.-
Buxar (Muffasil), Dist- Buxar.
... ... Appellant
Versus
1. The State of Bihar
2. Victim, c/o ... r/o Village-Krishnapuri, Chousa, P.S.-Buxar Muffasil, Dist-
Buxar.
... ... Respondents
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Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Rajeev Ranjan, Advocate
Ms. Vaishnavi Singh, Advocate
Ms. Sushmita Mishra, Advocate
For the State : Mr. Abhimanyu Sharma, Addl.PP
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-11-2025
This appeal has been preferred for setting aside the
judgment of conviction dated 13.02.2023 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
14.02.2023 (hereinafter referred to as the 'impugned order')
passed by learned Additional District Judge, VI-cum-Special
Judge, POCSO Act, Buxar (hereinafter referred to as the 'learned
trial court') in POCSO Case No. 45 of 2020 arising out of Buxar
Mahilla P.S. Case No. 118 of 2020.
2. By the impugned judgment, the appellant has been
convicted for the offences punishable under Section 376 of the
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025
2/33
Indian Penal Code (in short 'IPC') and Section 4 of the Protection
of Children from Sexual Offences Act (in short 'POCSO Act'). By
the impugned order, he has been sentenced to undergo twenty
years rigorous imprisonment with a fine of Rs.20,000/- under
Section 376 IPC and Section 4 of the POCSO Act. In default of
payment of fine, he has to further undergo six months simple
imprisonment.
Prosecution Case
3. The prosecution case is based on the written
application of the informant/victim (PW-1). In her written
application, she has stated that on 13.12.2020 at about 09:00 AM,
she was going to get repaired her 'remote' from her house, as soon
as she reached near Gadhitir Wall, then this appellant came from
behind on his motorcycle and asked as to where was she going, to
which she replied saying that she was going to get repaired the
remote. Thereafter, this appellant told her to come at his shop with
him where she will get the remote, he took her on his motorcycle.
He took her near Durga temple where he got seated a boy on the
motorcycle and took her at a dilapidated government building near
canal where this appellant and his friend committed rape on her.
She has stated that she already knew this appellant but she did not
identify his friend, however, she will recognize him on seeing.
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025
3/33
She has alleged that both committed rape on her and after leaving
her there, they fled away on the motorcycle. She somehow reached
her house and narrated the whole incident to her mother.
Thereafter, her parents took her to Buxar Mahila Police Station.
The informant also stated that she belongs to Scheduled Caste.
4. On the basis of this written application, Buxar Mahila
P.S. Case No. 118 of 2020 dated 13.12.2020 was registered under
Sections 376(D) IPC and Sections 4/6 of the POCSO Act and
Section 3(1)(2)(wi)/3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act (in short SC/ST Act) against
this appellant and one unknown person. After investigation, Police
Submitted chargesheet bearing Chargesheet No. 32 of 2021 dated
31.03.2021under Section 376(D) IPC and Section 4/6 of the POCSO Act and Section 3(1)(r)(wi)/3(2)(v) of the SC/ST Act against this appellant showing another co-accused, namely, Ravi Prasad not sent up. Learned trial court vide order dated 14.06.2021 took cognizance of the offences under Section 376, 376(D) and Section 4/6 of the POCSO Act. Charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried. Accordingly, vide order dated 17.08.2021, charges were framed under Section 376, 376(D) IPC and Section 4/6 of the POCSO Act.
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 4/33
5. In course of trial, the prosecution examined as many as six witnesses and exhibited several documents to prove it's case. The list of the prosecution witnesses and the list of exhibits are being shown hereunder in tabular form:-
List of Prosecution witnesses PW-1 Victim PW-2 Father of the Victim PW-3 Mother of the Victim PW-4 Dr. Madhu Singh PW-5 Dr. Yogendra Kumar PW-6 Karuna Devi List of Exhibits on behalf of the Prosecution Exhibit 'P1' Signature of the victim on Written Application Exhibit 'P2' Signature of the victim on her 164 CrPC statement Exhibit 'P3' Signature of the Victim on Seizure List Exhibit 'P4' Signature of the Victim on the Medical Report Exhibit 'P5' Writing and Signature of Dr. Madhu Singh on the Medical Report Exhibit 'P5/1' Signature of Dr. Yogendra Kumar on the Medical Report Exhibit 'P5/2' Writing and Signature of Dr. Arun Kumar Singh on the Medical Report Exhibit 'P6' Writing and Signature of Dr. Yogendra Kumar on the X-Ray Report Exhibit 'P7' Formal FIR Exhibit 'P7/1' Registration of the FIR by SHO Nitu Priya Exhibit 'P7/2' Signature of SHO Nitu Priya on the back side of the FIR Exhibit 'P8' Seizure List Exhibit 'P8/1' Signature of Sadagar Ram on the Seizure List Exhibit 'P9' FSL Report No. 117/2021 dated 05.08.2022 and 26.03.2022 Exhibit 'P9/1' FSL Report No. 117/2021 dated 17.04.2021 Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 5/33
6. Thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (in short 'CrPC'). He took a plea that he was innocent and had falsely been implicated. The defence has not adduced any oral or documentary evidence to prove it's case.
Findings of the Learned Trial Court
7. Learned trial court, after analysing the evidences on record, found that that there was no inconsistency in the statement of the victim, in her 164 CrPC and in the written application. Learned trial court found that PW-2 and PW-3, who were the father and the mother of the victim respectively, have fully supported the prosecution case.
8. Learned trial court found from the evidence of Dr. Madhu Singh (PW-4) that a bruise was found on anterior part of left leg just below knee and the possibility of sexual act cannot be ruled out. Dr. Yogendra Kumar (PW-5) by radiological examination has assessed the age of the victim between 15-16 years and the I.O. has collected the document related to date of birth in which date of birth of the victim has been shown as 01.01.2005.
9. Learned trial court found that the I.O. had seized the blue jeans pant of the victim and sent the same for examination. In Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 6/33 the FSL Report, blood has been detected on the blue jeans pant which is marked 'A'.
10. Learned trial court after considering all the facts and circumstances of the case found that the prosecution has been able to prove it's case against the appellant beyond all reasonable doubts. Accordingly, learned trial court held the appellant guilty of the offence punishable under Section 376 IPC and Section 4 of the POCSO Act.
Submissions on behalf of the Appellant
11. Learned counsel for the appellant submits that the victim (PW-1) has stated in her deposition that she had studied upto Class-IV and the name of her school is Gara, Nuwaon. It would appear from the deposition of the I.O. (PW-6) that she had obtained the document relating to date of birth of the victim which she had entered in the case diary. A perusal of the entry made in the case diary would show that the victim had not produced her date of birth certificate from the school rather she had submitted a copy of the Aadhar card showing her date of birth as 01.01.2005. PW-6 has stated this fact in paragraph '24' of her deposition. It is thus submitted that the actual date of birth as per the school admission register has been suppressed by the prosecution. In absence of the date of birth as per school admission register, the Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 7/33 learned trial court has relied upon her medical examination reports marked (Exhibit 'P-5/PW-4', 'P-5/1/PW-4' and 'P-5/2/PW-4') at the instance of Dr. Madhu Singh (PW-4). The dental examination of the victim showed that she had total number of teeth 7x7 / 7x7= 28 and as per the radiological finding, age of the victim was assessed between 15-16 years. It is pointed out that Dr. Yogendra Kumar (PW-5) has stated that X-ray AP lateral right elbow shows upper epiphysis of radius and ulna fused. In his cross-examination, he has stated that a radius fusion takes place at the age of 16.5 years and ulna fuses at the age of 17 years. It is thus submitted that according to the X-ray referred by PW-5 in his deposition, the victim was at least 17 years old. In such circumstance, it is submitted that keeping in view the judicial pronouncements on the subject in the case of Court on its own Motion vs. State (NCT of Delhi) (Crl. Ref. 2/2024) reported in 2024 SC OnLine Delhi 4484 and the judgment of the Hon'ble Supreme Court in the case of Rajak Mohammad vs. State of H.P. reported in (2018) 9 SCC 248, the age of the victim may be assessed by giving a margin of two years which would result in the upper extremity of the age being eighteen years and above. It is thus submitted that the learned trial court has failed to determine the age of the victim keeping in view the judicial pronouncements on the subject. Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 8/33
12. Learned counsel further submits that in this case the victim (PW-1) cannot be said to be a sterling witness. She has stated in her deposition that the case was got written at the police station by one Dayadi Baba who was informed about the occurrence by the victim (PW-1). Who was this Dayadi Baba has not been disclosed and he has not been examined either by the I.O. or in course of trial. The victim has come out with her statement in course of 164 CrPC statement and in trial that she had disclosed the occurrence to Dayadi Baba whom she met on way back to her home but she did not know his name.
13. It is submitted that in her written information the victim alleged that on 13.12.2020 at 9:00 AM, she had left her house and was going to get repaired her 'remote' and as soon as she reached near Garhi Teer Diwal, this appellant came from behind and asked her as to where she was going, on her disclosure that she was going to get repaired her 'remote', the appellant asked her to accompany him to his shop where she would be given a 'remote' and by saying so he got the victim seated and took her near Durga Mandir where another boy got seated on the motorcycle whereafter both of them took the victim to an old dilapidated government building near a canal (nahar) and both of them committed rape on her. The victim stated in her written Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 9/33 information that she would identify the said boy on seeing. It is submitted that in course of investigation police recorded confessional statement of the appellant and based on that one Ravi Prasad was arrested and police recorded his fardbeyan as well but when test identification parade was conducted, the victim (PW-1) could not identify him whereafter said Ravi Prasad was not sent up for trial. It is thus submitted that there was a clear attempt by the victim (PW-1) not only to falsely implicate the appellant but also his friend Ravi Prasad who ultimately was not sent up for trial.
14. It is submitted that in her written information, PW-1 claimed that after the occurrence the accused persons left her and fled away by motorcycle. She claimed that she somehow reached her house and informed her mother about the occurrence but in her statement under Section 164 CrPC she has stated that when she left alone to go to her house from the place of occurrence, on way she met a baba of the neighborhood whom she disclosed the entire occurrence. The said baba took her to the shop of Sonu and asked the brother of Sonu as to whereabouts of Sonu, his brother expressed unawareness and did not disclose, then the victim came to her house and told the occurrence to her mother whereafter she went with her mother to lodge the case. Thus, in her 164 CrPC statement she made a different statement with regard to the Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 10/33 disclosure of the occurrence. Yet in course of trial, the same victim (PW-1) has stated that she had gone to the police station on the date of occurrence itself, with her the said Dayadi Baba (whom she had informed about the occurrence), her father and mother had gone and the case was got recorded by the said Dayadi Baba. It is, thus, submitted that her first statement that from the place of occurrence she had gone to her home and disclosed the occurrence to her mother has changed to a great extent and it has come that one Dayadi Baba had got lodged the case, who has not been examined.
15. Learned counsel further submits that in this case, the place of occurrence has not been duly proved by the prosecution. In the written application it is stated that the place of occurrence is a dilapidated government building near nahar, in her statement under Section 164 CrPC, the victim has stated that while she was going on the motorcycle and started from Durga Mandir, the boy which sat on the motorcycle at Durga Mandir gagged her mouth and this appellant stopped the motorcycle at some distance where there was a small bridge and near the said bridge there was a small house where she was subjected to rape. In her deposition in paragraph '2' she has only stated that she was taken to a vacant house where she was subjected to rape.
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 11/33
16. Father of the victim, who has been examined PW-2, has given the description of the boundary of the place of occurrence and according to him, in East and West there are parti lands, in North there is an "Arra machine" (Saw Mill), in South there is a new "Arra machine" (Saw Mill) and both the machines are functioning. He has stated that the victim was taken to a government quarter which is besides the nahar but in his cross- examination he said that he did not know the name of the department to which the said building belongs. Contrary to this, the mother of the victim (PW-3) has stated that the appellant had taken the victim on his motorcycle to a school near the bridge (pul) where the wrong act was done. She has admitted that in her statement before police she had stated that this appellant had taken the victim near the pul where there is a school. She, however, did not know the name of the school and could not say whether the students are studying in the said school or not because she was not going to that side. She has given a completely different boundary of the place of occurrence and according to her in North there is a shop of doors, in South-pul, East-parti and thereafter house and in West there is parti. As regards the place of occurrence, the I.O. has stated in paragraph '7' of her deposition that according to the informant and victim, the place of occurrence is situated at a Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 12/33 distance of fourteen kilometer west to the Mahila Police Station and it is the second floor of the Government Panchayat Bhawan. She has given the boundary of the place of occurrence as under:-
North-nala and hundred metre thereafter the road going from Chausa to Buxar, South-the toilet of Government Panchayat Bhawan whereafter soaling Road which goes towards Jharnia Mohalla, East-nala and thereafter khandahar zameen, West-katra of Government Panchayat Bhawan. It is thus submitted that the victim herself is not consistent about the place of occurrence and the prosecution has not been able to prove the place of occurrence. The I.O. (PW-6) did not find any incriminating material at the place of occurrence.
17. Learned counsel further submits that the victim has stated that she was going to get repaired her 'remote' and the said remote was till date not repaired. In this connection, her statement in paragraph '28' of her deposition has been referred to. The said remote was not produced before the I.O. and the I.O. (PW-6) has stated in paragraph '30' of her deposition that she had not mentioned during investigation about the company of which the remote was made of. PW-6 had also not investigated about the shop of the appellant. In paragraph '32' of her deposition, she has stated that she had not mentioned about the shop of this appellant. It is thus submitted that the claim of the victim that she had sat on Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 13/33 the motorcycle of the appellant for purpose of getting repaired her remote in the shop of the appellant has not been proved by the prosecution and the prosecution story on this ground seems to be highly doubtful.
18. Learned counsel submits that the victim has stated in her deposition that she had sat on the motorcycle with the appellant on his asking. Initially, she did not disclose that for how many years she was known to the appellant but in her further cross-examination, she has stated in paragraph '29' that she knew the appellant for 1-2 months prior to the occurrence, therefore the lawyer for the defence asked her that why did she utter a lie initially. It is also pointed out that the victim (PW-1) has stated that distance between the house of the appellant and her house was ten kilometers but regarding the distance of the market where remote is repaired, she has specifically stated in paragraph '16' of her deposition that the distance between her house and the market where remote is repaired was ten meters. It is thus submitted that to cover a distance of ten meters only for purpose of getting repaired the remote, the victim (PW-1) was not required to sit on a motorcycle. She has admitted that she had not handed over 'remote' to the police and further she did not remember that from whom the 'remote' was purchased. All these materials together Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 14/33 would suggest that the whole story as made out by the prosecution does not inspire confidence.
19. Learned counsel further submits that according to the victim (PW-1), the occurrence took place during summer season. She has stated that the appellant had not forcibly made her to sit on the motorcycle and she had sat on the motorcycle putting her both legs on both sides but she has stated that at the time she sat on the motorcycle, there was no one on the road. She has herself stated that Durga Mandir is situated on the Chausa Main Road which is a crowded place but then she has stated that on that day there was no crowd. The defence suggested that there were hundreds of shops near the said Durga Mandir and all the shops were opened and people were present at the shops, the victim simply said that she was not aware of it. The I.O. (PW-6) has stated in paragraph '40' of her deposition that she had not recorded the statement of the neighboring people to the place of occurrence and she had not found any incriminating article at the place of occurrence. It is, thus, submitted that it seems highly improbable that during the summer season if the victim would have gone with the appellant on his motorcycle to the Durga Mandir where he allegedly got seated his friend also on the motorcycle, no one in the market would see her with the appellant. The I.O. (PW-6) has Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 15/33 stated that she had not investigated about the motorcycle on which the victim claimed to have seated with the appellant.
20. Learned counsel further submits that the victim was medically examined by the doctors. PW-4 and PW-5 are the Medical Officers who were involved in the medical examination of the victim. PW-4 has deposed that on private part examination- no injury on vulva, labia majora, labia minora, hymen, perineum and anal region were found. The doctor found a bruise on anterior part of left leg just below knee size 1" x 1", blue in colour caused by hard and blunt object and the age of injury was less than three days. PW-4 clarified in his deposition that the colour of the injury helps in identifying the age of the injury and in case of fresh injury, the color of the bruise could be a red colour which normally remains for two hours but there is no measuring parameters for the same. In paragraph '5' of his deposition, PW-4 has stated that she had not found any injury on the private part of the victim. It is submitted that PW-5 has proved Exhibit 'P-6/PW-5' which is with regard to the opinion as to radiological finding age of the victim.
21. It is lastly submitted that in her deposition, the victim has stated that in the alleged sexual act committed on her blood had not come out. Police seized an old full jeans pant said to be that of the victim on 13.12.2020 itself but on perusal of the trial Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 16/33 courts records it would appear that the said seizure list of the jeans pant was not submitted in the court on 14.12.2020. The cloth was kept in the Malkhana but was not produced in court until 05.01.2021 when the I.O. (PW-6) produced the cloth with an application seeking permission to send the same to the Forensic Science Laboratory (FSL). As regards the seizure of the cloth, the I.O. (PW-6) has stated that the cloth was sent to the FSL on 21.01.2021. PW-6 has proved the seizure list Exhibit 'P-8/PW-6' on which she identified the signature of the seizure list witnesses namely Saudagar Ram (not examined) and Jhunia Devi (PW-3). In her cross-examination, she has stated that she had not recorded about sealing of the seized article in the case diary, therefore the defence suggested that the seized exhibit was not sealed by her and no such occurrence had taken place. The FSL report has been marked exhibit as a public document as Exhibit 'P-9' and Exhibit 'P-9/1' respectively vide order dated 05.08.2022 of the learned trial court. According to the FSL report blood has been detected at places in the exhibit mark 'A' which is the old dirty light sky colour jeans pant. The FSL reports were exhibited as a public document only under Section 293 CrPC. No expert from FSL came to testify as to the contents of the reports. Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 17/33 Learned counsel submits that non-submission of the seizure list of the cloth and production of the seized cloth in the trial court on 14.12.2020, the specific statement of the victim that blood had not come out of her body and there being no matching of the blood found on exhibit mark 'A' would throw a huge doubt over the prosecution's case and mere presence of blood on the cloth mark exhibit 'A' in the facts of the present case would not be a clinching evidence when it has come in evidence of the doctor (PW-4) that the victim did not remember her last menstruation period. Reliance in this regard has been placed on the judgment of this Court in the case of Kalendra Paswan vs. The State of Bihar in Criminal Appeal (DB) No. 37 of 2023 and the judgment of the Hon'ble Supreme Court in the case of Krishna Kumar Malik versus State of Haryana reported in (2011) 7 SCC 130.
22. In the aforementioned submissions, prayer has been made to set aside the impugned judgment and order of the learned trial court.
Submission on behalf of the State
23. On the other hand, learned Additional Public Prosecutor for the State would submit that the learned trial court has rightly appreciated the ocular and documentary evidences available on the record. The age of the victim has been assessed on Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 18/33 the basis of the medical examination report which indicated that the victim was between 15-16 years of age.
24. Learned Additional Public Prosecutor further submits that in this case the prosecution has duly proved the place of occurrence and even as little variations may be found with regard to the description of the place of occurrence in the deposition of the various witnesses, the same would not be fatal to the case of the prosecution.
25. Learned counsel further submits that the presence of injury on the private part of the victim is not required to prove a case of penetrative sexual act and in the present case even as the medical opinion does not confirm a case of penetrative sexual act, the doctor has opined that possibility of sexual act cannot be ruled out.
26. Learned Additional Public Prosecutor would submit that in a case under the POCSO Act there would be presumption in terms of Section 29 and 30 of the POCSO Act. The prosecution in this case has laid down the foundational facts but the defence is not able to create any doubt to the prosecution case and the accused-appellant has failed to prove his innocence by preponderance of possibility.
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 19/33 Consideration
27. We have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. This Court has noticed that in this case, the informant/victim was noticed but she refused to receive the notice whereafter the notice was taken as validly served upon her. On perusal of the trial court's records we have found as under.
Determination of the age of the victim (PW-1)
28. It has come in evidence of the victim that she had studied in school upto Class-IV. The victim had also disclosed the name of the school in her deposition but during investigation her date of birth as per school administration register has not been collected by the I.O. (PW-6). PW-6 has stated in her deposition that the date of birth of the victim is 01.01.2005 as per the Aadhar card. Thus, it it appears to this Court that the prosecution has either suppressed the actual date of birth as recorded in the school admission register or it is a lapse on the part of the Investigating Officer (PW-6) who instead of investigating on this point from the school in which the victim had studied upto class IV, recorded the date of birth on the basis of the Aadhar card of the victim which is not admissible for purpose of age of proof under Section 94 of the Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 20/33 Juvenile Justice (Care and Protection of Children) Act, 2015. The victim (PW-1) was examined and her radiological examination proved that she was aged between 15-16 years. The doctor (PW-4) has stated that the X-ray AP lateral right elbow shows upper epiphysis of radius and ulna fused. In his cross-examination, Dr. Yogendra Kumar (PW-5) has stated that in the girls radius gets fused at the age of 16.5 years and ulna gets fused at the age of 17 years. On the point of assessment of age of the victim under the POCSO Act, the Hon'ble Delhi High Court has held in the case of Court on its own Motion (supra) as under:-
"46. As an upshot of our foregoing discussion, the Reference is answered as under:-
(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range' be considered as age of the victim.
(ii) Whether the principle of 'margin of error' is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be applied."
29. In the case of Rajak Mohammad (supra) the Hon'ble Supreme Court has held in the following words:-
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 21/33 "8. On the other hand, we have on record the evidence of Dr Neelam Gupta (PW 8), a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years.
9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.
10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."
30. Having regard to the aforementioned evidences on the record and the judicial pronouncements on the subject when we give a margin of two years to the medically opined age of 16 years, the upper extremity of the age would come to 18 years. The learned trial court seems to have completely ignored this aspect of the matter and held that the prosecution has been able to prove that the victim was aged below 18 years at the time of occurrence. By applying the judicial pronouncements referred hereinabove in the Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 22/33 facts of the present case, we would conclude that in this case, the prosecution has not been able to lay down the foundational facts with regard to the age of the victim. It is thus not safe to hold that the victim was aged below 18 years at the time of occurrence on 13.12.2020.
Place of Occurrence
31. We have noticed from the evidences available on the record that the victim (PW-1) has initially stated in her written information that the occurrence took place in a khandaharnuma Sarkari Bhawan near nahar. In her 164 CrPC statement, PW-1 has stated that the occurrence took place in a small house near a pul which is at some distance from the Durga Mandir. In course of trial, however, the informant (PW-1) has stated that she was taken to a vacant house where she was subjected to rape. Thus, in her three statements made at three different points of time, the victim (PW-1) has given different description of the place of occurrence. PW-2, who is father of the victim, has stated that the place of occurrence is a government quarter adjacent to the nahar whereas the mother of the victim (PW-3) has stated that the place of occurrence is a school near the pul. Contrary to all these claims, the I.O (PW-6) has stated that the place of occurrence is at a distance of 14 kilometer west to the Mahila Police Station. PW-6 Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 23/33 has stated that the occurrence took place on the second floor of the Sarkari Panchayat Bhawan. In paragraph '8' of her deposition, PW-6 has given the description and boundary of the place of occurrence. She did not find any incriminating article at the place of occurrence and even as it is stated that at the place of occurrence there were straws in the room on which the rape was committed, the I.O. has not seized any incriminating article. The deposition of the I.O. would show that the place of occurrence is a place where in the vicinity there is no arra machine but according to PW-3, the victim was taken near the pul where there is a government school and in the boundary of the place of occurrence, there is a shop in the north side, in south there is a pul but according to the I.O., in the south of the place of occurrence there are toilets of the Government Panchayat Bhawan whereafter there is a soaling road which goes towards Jharania Mohalla. To this Court, it appears that the prosecution in this case has not been able to prove the place of occurrence.
Medical Examination of the Victim
32. The two doctors who are PW-4 and PW-5 in this case were working as Medical Officers in the Sadar Hospital, Buxar on 13.12.2020. They were members of the Medical Board. PW-4 had examined the private part of the victim. In his report he Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 24/33 has recorded:- "On private part examination:- No injury on vulva, labia majora, labia minora, hymen, perineum and anal region...".
33. According to the victim, she was subjected to forcible rape by two boys aged about 20 years. She has deposed that they have forcibly established the relationship, still the doctor did not find any injury on her private part and no redness or tenderness on vulva, labia majora and labia minora could be noticed by the doctor. Nothing of that nature has been pointed out in his report by PW-4. As regards the bruises on the anterior part of left leg just below knee size 1" x 1", the opinion of PW-4 is that it was blue in color caused by hard and blunt object. It is not the prosecution case that said injury was caused during commission of rape. At no stage, the victim has stated so, therefore it cannot be presumed that the injury on the knee which was said to have been caused within three days had been caused in course of occurrence. Moreover, the colour of the injury being blue, according to the statement of the doctor in his cross-examination, this Court finds that it was not a fresh injury.
34. In paragraph '19' of her deposition, the victim (PW-
1) has specifically stated that blood had not come out of her body. She was not wearing anything except the jeans and top. In course of trial, she has stated that the place where physical relationship Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 25/33 was established, bed was placed on the straws and a towel (gamchi) was put thereon which was of red color but on this gamchi or puwal (straw) neither blood nor semen or any other substance had fallen. Thus, the victim has not only confirmed that no blood had come out of her body but she has also stated that blood, semen or any other substance had not fallen on the gamchi or the puwal. On the face of this statement of the victim, the finding in the FSL report exhibit mark 'A' i.e., old dirty light sky coloured jeans pant contained blood cannot be used as a clinching evidence against the accused-appellant to prove that the said blood stain was found in the jeans pant of the victim as a result of the occurrence of rape. In this regard, we are of the opinion that it would not be safe to place much reliance on the prosecution case that the jeans was seized by police on 13.12.2020 itself. I.O. had not produced the said jeans with the seizure list in the court on 14.12.2020, the cloth was produced in court on 05.01.2021 and permission was sought to send the same to FSL which was granted whereafter the I.O. (PW-6) sent the clothes to FSL, Patna on 21.01.2021. It has also come in evidence that the cloth seized was lying in the Malkhana but it was not in a sealed condition.
35. The blood found on the jeans as per the FSL report was not matched with the blood of the victim and the doctor (PW- Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 26/33
4) has recorded that the victim did not remember her last menstruation period. The gap between the seizure of the cloth and its production in the court and then the fact that the cloth was not kept in sealed condition are such that it would prove fatal to the credibility of the prosecution story. The fact remains that the FSL report Exhibit '9' and Exhibit '9/1' were brought in evidence in form of a public document under Section 293 CrPC but the experts from the FSL who authored the report were not brought in dock to prove the contents of the report. The FSL report is in the nature of an opinion. In the facts of the present case, the opinion of the FSL only showing presence of blood on the jeans cloth would not complete the chain of the circumstances to prove the guilt of the accused. In the case of State of Bihar vs. Durgawati Devi reported in 2021 (4) PLJR 516, the Hon'ble Division Bench of our own High Court has elucidately dealt with this aspect of the matter in paragraphs '87' to '95' as under:-
87. Generally, the opinion of an expert though relevant, requires the expert to be examined as a witness in court otherwise his report cannot be admitted in evidence.
Section 273 of the CrPC lays down a general rule that all evidence taken in the course of a trial or other proceeding shall be taken in the presence of the accused. However, Sections 292 and 293 CrPC are exceptions to the general rule as laid down in Section 273 CrPC. Both these sections also depart from the elementary rule of law that unless the evidence is given on oath and is tested by cross- examination, it is not legally admissible against the party affected. Section 293 CrPC make the report of the certain Government Scientific Experts mentioned in sub-section Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 27/33 (4) of this section, admissible in evidence without calling him as a witness.
88. Section 293 CrPC corresponds to Section 510 of the old Code of Criminal Procedure, 1898 and Section 510 of the old code was bifurcated into two sections-292 and 293. Section 292 deals with the evidence of officers of Mint, Controller of Stamps whereas Section 293 deals with evidence of certain scientific experts.
89. The legislative intention behind the framing of Section 510 vis-a-vis section 292 and 293 CrPC can be well-judged from the observation recorded by The Law Commission's 41st Report. It was observed therein:
"41.1 The framers of the Code were aware that the evidence of certain experts in the service of Government would be frequently required in Criminal Courts, and if these experts were to be treated as ordinary witnesses whose sworn statement in court alone could be legal evidence, they would be spending most of their time giving evidence. Also the number of such experts was so small that they could not be always conveniently spared for attending the court. Special rules of evidence were therefore framed for them. They are placed in Chapter XLI of the Code."
90. Thus, the report of any of expert specified under said Section, on any matter duly submitted to him for examination or analysis was recommended by the Law Commission to be considered as good evidence.
91. It was further observed that section 510(2) makes it obligatory for the court to summon the Chemical Examiner or other officer mentioned in sub-section (1) if either party so desires. The provision was considered unsatisfactory and the Law Commission recommended an amendment to the section to the extent that summoning any such expert should be left to the discretion of the Court. The recommendations of the Law Commission were eventually accepted and the provision was amended accordingly. The provision as laid down under section 293 CrPC, was further amended through Criminal Law (Amendment) Act, (45 of 1978) and Criminal Law (Amendment) Act 2005 (2 of 2006) and reports of some more Government Scientific Experts were included under sub-section (4) of section 293 CrPC.
92. Section 293 CrPC makes a report of the certain Government Scientific Experts mentioned under subsection Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 28/33 (4) of this Section admissible in evidence without calling him as a witness.
93. Although it is not required to examine the expert as a witness to prove his report under Section 293 CrPC, the report cannot be read in evidence unless it is tendered in evidence.
94. In Wali Muhammad v. Emperor reported in AIR 1924 All 193, the Allahabad High Court held:"Under Section 510 of the Code of Criminal Procedure any document purporting to be a report under the hand of a Chemical Examiner upon any matter duly submitted to him for examination and report may be used as evidence in any enquiry, trial or other proceeding. This, however, does not imply that without tendering it in evidence it can be made use of for the first time in appeal. It is a piece of evidence that does not require any formal proof, but at the same time it must be tendered as evidence and used as such, so that the accused may have a chance of questioning the identity of the packets".
95. Similar view was expressed by the Delhi High Court in Chhotu Kumar (supra), wherein it has been held that:"Although the said report may be admissible under Section 293 of the Cr.P.C. without the author testifying to the contents thereof, however, the said report was required to be tendered and could not be taken note of without the same being tendered and exhibited".
36. We have also noticed that the friend of the appellant who was allegedly involved in this case namely Ravi prasad was not identified by the victim and police did not find sufficient material to proceed against him.
37. We have found that in this case the victim has stated that the appellant had a mobile shop and she was going to get repaired her 'remote'. The distance between her house and the market where 'remote' was to be repaired is stated to be 10 meters only but the distance between the house of the informant and the Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 29/33 house of the appellant is said to be 10 kilometers. The victim (PW-1) claimed that she was going for repairing of her remote but till the date of her deposition in course of trial, the said remote had not been repaired. She did not produce the remote before the I.O. and the I.O. could not disclose the description of the remote. The victim initially tried to suppress her acquaintance and relationship with the appellant but in course of her cross-examination, she admitted her acquaintance with the appellant for last 1-2 months. She has also stated that she sat on the motorcycle of the appellant but for that the appellant did not apply any force. It is evident from her deposition that she had sat on the motorcycle on her own and had gone to the place near Durga Mandir where large number of shops are existing. She says in her deposition that when she sat on the motorcycle, there was no one on the road and she had not come down from the motorcycle rather the accused persons had lifted her away and the place where she had come down, she could not pay attention as to how many persons were there. She has stated that while going on the motorcycle she had not raised any hulla. All these evidences on the record would only show that the victim was well known to the appellant and it is her case that she had gone with the appellant on his motorcycle. This Court would not believe that she sat on the motorcycle for purpose of getting her Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 30/33 remote repaired in the shop of the appellant. The I.O. has specifically stated that she had not made any investigation as to the shop of the appellant.
38. It is also evident that while in her written information, the victim (PW-1) has stated that after the occurrence when the accused persons left her and fled away then she returned home on her own and told the story to her mother but thereafter she had introduced one Dayadi Baba to whom she told the story while returning home and the said Dayadi Baba took her to the mobile shop of the appellant where brother of the appellant was sitting who did not disclose the whereabouts of the appellant. The victim (PW-1) has categorically stated that she did not know as to who had written the application which has been given to the police. In paragraph '9' of her deposition she has stated that she is not aware of it. She has also stated in paragraph '26' that she had gone to the police station with Dayadi Baba, her father and mother and at the police station the said Dayadi Baba had got written the case. It is thus evident that there is someone behind the curtain who got the first information written at the police station. The said Dayadi Baba has not been investigated by the I.O. nor has been produced in course of trial.
Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 31/33
39. This Court also finds that there is no witness at all to say that the victim was seen in the company of the appellant near Durga Mandir or the canal. I.O. has stated in her deposition that she had not recorded the statement of the people in the neighbourhood and had not found any incriminating material at the place of occurrence. In these circumstances, we are of the considered opinion that the victim in this case would not fall in the category of a sterling witness. The Hon'ble Supreme Court has discussed the evidentiary value of a sterling witness and the kind of quality sterling witness should possess in the case of Rai Sandeep @ Deepu vs. State (NCT of Delhi) reported in (2012) 8 SCC 21. Paragraph '22' of the said judgment is being reproduced hereunder for a ready reference:-
"22.* In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a * Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012. Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 32/33 position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
40. The defence has suggested that the victim was blackmailing the appellant for purpose of extracting money from him and has falsely implicated him as also that the victim was major. Thus, on the one hand, the prosecution in this case has not been able to lay down the foundational facts so as to attract the provisions of the POCSO Act and at the same time, the appellant has been able to demonstrate the material discrepancies and the gaping holes in the prosecution case. This Court is, therefore, of Patna High Court CR. APP (DB) No.391 of 2023 dt.18-11-2025 33/33 the opinion that it would not be safe to sustain the conviction and sentence of the appellant.
41. The impugned judgment and order of sentence of the learned trial court are set aside. The appellant is acquitted of the charges giving him benefit of doubt.
42. The appellant is in incarceration, he shall be released forthwith if not wanted in any other case.
43. This appeal is allowed.
44. Let a copy of this judgment together with the trial court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) arvind/-
AFR/NAFR CAV DATE 13.10.2025 Uploading Date 18.11.2025 Transmission Date 18.11.2025