Patna High Court
Subodh Rai 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.248 of 2023
Arising Out of PS. Case No.-17 Year-2020 Thana- MAHILA P.S. District- Samastipur
======================================================
Subodh Rai, Son of Bindeshwar Rai, Resident of village - Virnama Tola, P.S.-
Angarghat, Distt.- Samastipur.
... ... Appellant
Versus
1. The State of Bihar
2. Usha Devi, Wife of Dilip Ray R/o village - Birnama Tola, P.S.- Angarghat,
District - Samastipur.
... ... Respondents
======================================================
Appearance :
For the Appellant : Ms. Surya Nilambari, Amicus Curiae
For the State : Mr. Dilip Kumar Sinha, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-11-2025
Heard Ms. Surya Nilambari, learned Amicus Curiae for
the appellant and Mr. Dilip Kumar Sinha, learned Additional
Public Prosecutor for the State.
2. Though notice to Informant-Respondent No. 2 has
been sent through registered mode but it was returned with a report
"refused".
3. This appeal has been preferred for setting aside the
judgment of conviction dated 03.02.2023 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
08.02.2023(hereinafter referred to as the 'impugned order') passed by learned Additional District and Sessions Judge-VI-cum- Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 2/37 Special Judge, POCSO Act, Samastipur (hereinafter referred to as the 'learned trial court') in Trial No. 88 of 2023 arising out of Mahila P.S. Case No. 17 of 2020.
4. By the impugned judgment, the appellant has been convicted for the offences punishable under Sections 376 (AB) of the Indian Penal Code (in short 'IPC') and Section 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). By the impugned order, he has been sentenced to undergo rigorous imprisonment for twenty years with a fine of Rs.20,000/- under Section 6 of the POCSO Act and in default of payment of fine, he shall further undergo six months' rigorous imprisonment. Further, he has been sentenced to undergo rigorous imprisonment for twenty years with a fine of Rs.20,000/- under Section 376 (AB) of the IPC and in default of payment of fine, he shall further undergo six months' rigorous imprisonment. Both the sentences are to run concurrently.
Prosecution Case
5. The prosecution case is based on the fardbeyan of mother of the victim (PW-2) recorded on 10.02.2020 at 18:10 PM in Emergency Ward. In the fardbeyan, PW-2 has stated that on 10.02.2020 at about 02:00 PM, she was bathing after cooking food at her house, in the meantime, her co-villager, namely, Subodh Rai Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 3/37 (appellant) came and told her victim daughter aged about five years and her son that today is Holi, let's go for a walk. The appellant took both her children. After some time son of the informant returned and told that Subodh uncle had committed wrong with the victim and the victim was flinching and he was gagging her mouth. Then she rushed with her son at the place of occurrence and saw that her victim daughter was crying. When the informant asked then the victim told her about the occurrence that the accused committed wrong with her and the appellant told her not to disclose this to anyone otherwise she will be assaulted. Thereafter, the informant went to ward member and Mukhiya but they were absent then she came to Angarghat Police Station and victim was brought to the Hospital.
6. On the basis of this fardbeyan, Mahila P.S. Case No. 17 of 2020 dated 10.03.2020 was registered under Section 376 (AB) IPC against this appellant. After investigation, Police Submitted chargesheet bearing Chargesheet No. 34 of 2020 dated 14.05.2020 under Section 376 (AB) IPC and Section 4 of the POCSO Act against this appellant. Learned trial court vide order dated 05.06.2020 took cognizance of the offences under Section 376(AB) IPC and Section 4 of the POCSO Act. Charges were read over and explained to the appellant in Hindi to which he pleaded Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 4/37 not guilty and claimed to be tried. Accordingly, vide order dated 25.03.2021, charges were framed under Section 376(AB) IPC and Section 6 of the POCSO Act.
7. 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 Mother of the Victim (Informant) PW-3 Nathuni Rai PW-4 Dr. Junaid Akhtar PW-5 Dr. Megha Ahuja PW-6 Nilima Kumari (I.O.) List of Exhibits on behalf of the Prosecution Exhibit 'P-1/PW-4' Signature of Doctor on the Medical Report Exhibit 'P-2/PW-6' Writing of the SHO on the FIR Exhibit 'P-2/1 / PW- Signature of SHO on the FIR 6 to 'P-2/3 / PW-6' Exhibit 'P-3/ PW-6' Chargesheet
8. Thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (in short 'CrPC'). He denied the allegations and took a plea that he Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 5/37 was innocent. The defence has not adduced any oral or documentary evidence to prove it's case.
Findings of the Learned Trial Court
9. Learned trial court, after analysing the evidences on record, found that the appellant has committed aggravated penetrative sexual assault and rape upon the victim. Learned trial court found the age of the victim around 5 years.
10. Learned trial court on perusal of the medical report of the victim proved by the Doctors (PW-4) and (PW-5) found blood stains on the thigh of the victim, abrasion of 0.5 mm over labia minora at 5 O'clock. Learned trial court found that the medical examination has been done on the same day of occurrence.
11. 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 (AB) IPC and Section 6 of the POCSO Act.
Submissions on behalf of the appellant
12. Ms. Surya Nilambari, learned Amicus Curiae has submitted that in this case, the fardbeyan of the mother of the Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 6/37 victim is said to have been recorded in the Emergency Ward of Sadar Hospital in presence of the police officer. A perusal of the fardbeyan would show that there is a right thumb impression of the mother of the victim, there is an endorsement 'RO/AC' and Neelima Kumar, SHO has put her signature. One Nathuni Rai has also signed on the fardbeyan. In course of trial, Nilima Kumari (PW-6) has deposed that on 10.03.2020, the informant had come to the police station and told her about the occurrence, whereafter she had recorded her statement, got her thumb impression on the same and she had also put her signature.
In her examination-in-chief, she has identified her signature on the written application but she does not mention about the signature of Nathuni Rai appearing on the fardbeyan. In her cross- examination, she has stated that except Nathuni Rai, she had not interrogated any other villager or Sarpanch. She had not taken statement of the son of the informant. She had also not found any mark on the body of the victim. She had seized the clothes of the victim but had not found any blood on her body. She had not got the accused medically examined after his arrest. The mustard plants at the place of occurrence were not found in trampled condition and she had not found any other mark in the field. It is, thus, submitted that the deposition of the I.O. (PW-6) creates doubt Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 7/37 over the place where the fardbeyan of the informant was recorded. Referring to the fardbeyan, it is stated that in the fardbeyan it is nowhere recorded that the same has been recorded by PW-6. The FIR has though been shown registered on 10.03.2020, it was received in the court of learned Special Judge only on 12.03.2020. The date of dispatch shown in the formal FIR is 10.03.2020 (Exhibit '2/2') which seems to be an act of ante-dating.
13. Learned counsel further submits that the son of the informant, who was present with the victim, has not been examined and Nathuni Rai (PW-3) has, though, not supported the prosecution case, has not been declared hostile by the prosecution. He has clearly stated that he had heard that Subodh Kumar (appellant) had put colours on the face of the victim but he did not know what else he had done and he had not heard about any other occurrence. When he came to depose in course of trial, his signature on the fardbeyan was not placed before him for identification.
14. Learned counsel further submits that the informant of this case has been examined as PW-2. In course of trial, she has stated that her eight years old son came and told her that Subodh was committing wrong act with her daughter, she ran weeping and found Subodh was coming on way with her daughter. She has Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 8/37 stated that Subodh had done sexual act with her daughter. She had gone to the house of Sarpanch where she was asked to go to Nathuni and when Nathuni gave a telephone call then Mahila Thana came and she informed the occurrence to Mahila Thana. According to PW-2, Nathuni Rai had written in the application whatever she had said and read over to her on which she had put her thumb impression. It is submitted that while I.O. (PW-6) has stated that the informant had come to the police station and claimed that she had recorded the fardbeyan of the informant, in her handwriting, PW-2 has stated a completely different and contradictory thing by saying that it was Nathuni who had written the application at her instance. Nathuni (PW-3) has not stated so and has shown his complete unawareness of the occurrence.
15. Learned counsel submits that while in the fardbeyan the informant has stated that in her presence the appellant had taken away her son and daughter on the pretext of a visit outside and only after some time her son came and informed that the appellant was committing wrong act with the sister whereafter she was restless and the appellant was pressing her mouth, then the informant claimed to have reached the place and saw that the victim was weeping and when she asked her about what happened then she informed that the appellant had committed wrong act with Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 9/37 her and told her not to disclose it to anyone. She had taken her daughter to Mukhiyaji and from there she reached Angarghat Police Station with her daughter and from there she had brought her daughter for treatment with the police officer. Contrary to this statement, in course of trial she said that she saw that the appellant was coming along with her daughter.
16. It is pointed out that a complete reading of the deposition of PW-2 would show that she was obliged by Nathuni Rai in her maike. She was living in her maike, her husband was living outside and she has clearly stated that the appellant is her nephew. In paragraph '8' she has stated that the relationship between Subodh Rai and her is not good and they are on inimical terms. She has stated that Nathuni Rai had taken her to police station and there whatever he had written on that she had put her thumb impression. She has stated that her statement was not made before police and whatever Nathuni Rai had written, she had put her thumb impression. Although in her examination-in-chief, she has stated that she had found blood on the pant of her daughter but in cross-examination she has stated that she had not told this fact that blood was present on the pant of the victim to the police. This witness has admitted that there is enmity between Nathuni Rai on the one hand and Subodh Rai and his brothers. The defence Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 10/37 suggested that because of this enmity between Nathuni Rai and Subodh Rai and enmity between the witness (PW-2) and Subodh Rai, this false case has been registered.
17. Learned Amicus Curiae has further relied on the evidence of Dr. Junaid Akhtar (PW-4) who had examined the victim on 10.03.2020 in Sadar Hospital, Samastipur. In his general examination, he found no injury and foreign body over body parts. The doctor noted blood stains present over medial side of thigh on both sides. Labia minora-normal, abrasion of 0.5 mm over labia minora at 5 o'clock. Hymen was intact. No foreign body seen over private parts. He has stated that the internal examination of the victim was done by Dr. Megha Ahuja, he had only put his signature as a members of the Board. It is submitted that the lady doctor (PW-5) has stated in her cross-examination that in case of itching of minora part of labia by fingers, abrasion would take place. She has also stated that "as hymen was intact, there was no sign on the opening part of vagina." She had not found any semen on any part of the body of the victim or on the cloth of the victim. The lady doctor (PW-5) has stated that rape has not been committed but attempt of sexual assault has taken place.
18. Learned counsel submits that while the doctor has stated about presence of blood stains over medial side of thigh, the Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 11/37 I.O. (PW-6) has stated that she had not found any blood on the body of the victim. The informant has also not stated about presence of blood in the fardbeyan and she has stated in trial that she had found blood on the pant of the victim but this pant was not seized and it was not sent to the Forensic Science Laboratory. Victim has not stated about presence of blood on her body.
19. It is submitted that on the face of the overwhelming materials showing that the appellant being nephew of the informant and the informant was living in her naihar where they were not having good relationship and Nathuni (PW-3), who was not maintaining good relationship with the appellant and was on inimical term, had been helping the informant and she was obliged to him, this being a case of admitted enmity between the parties, the medical opinion showing presence of blood on the medial side of thigh is not getting support from the ocular evidence as neither the victim nor the informant or the I.O. has stated about presence of blood on the body of the victim. In fact, attention of this Court has been drawn towards paragraph '5' of the deposition of the victim (PW-1) who has specifically stated that when she had gone for treatment to doctor sahab blood was there on her pant, not on her body. She has stated that on the day of Holi, color was put on Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 12/37 her face. Learned counsel therefore, submits that it would not be safe to sustain the conviction of the appellant in the present case.
20. Attention of this Court has also been drawn towards the evidence of the defence witness Ramvilas Rai who is 70 years old and is uncle of the accused in relationship in the village. He has stated that two days prior to Holi, the she-goat of the informant was grazing in the field of Subodh who caught the she-goat and brought her to his house whereafter there was some quarrel and altercation between Subodh and the informant.
21. Learned counsel has drawn the attention of this Court towards the statements recorded under Section 313 CrPC. It is submitted that this Court may appreciate what kind of questions were put to the accused. All irrelevant questions were put without drawing his attention towards the incriminating materials. Thus, the learned trial court has committed grave error in convicting the accused-appellant in this case.
Submissions on behalf of the State
22. On the other hand, learned Additional Public Prosecutor for the State submits that in this case, the prosecution has proved the age of the victim being less than twelve years at the time of occurrence. In her statement under Section 164 CrPC, the victim has stated her age as five years and the learned Judicial Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 13/37 Magistrate found her competent to depose. Dr. Junaid Akhtar (PW-
4) found her age between four and five years, her mother has stated that the victim was aged about seven years, however, the defence has not cross-examined her on the point of age. The defence has also not given any contradictory proof of age of the victim.
23. Learned Additional Public Prosecutor has further submitted that no doubt the onus to prove the guilt of the accused is upon the prosecution, in a case under the POCSO Act, there is presumption under Sections 29 and 30 of the POCSO Act which has to be construed strictly. In this case, the victim (PW-1), has supported the prosecution case. In his opinion, the sole testimony of the prosecutrix is a clinching evidence to support the conviction of the appellant.
24. Learned Additional Public Prosecutor submits that the mother of the victim (PW-2) has stated that there is enmity between Nathuni Rai on the one hand and the appellant and his brothers, she has also admitted her enmity with the appellant but it cannot be said that the enmity between the parties could have led to this situation where the mother of the victim will lodge a false case involving her own minor daughter. So far as the evidence of Nathuni Rai (PW-3) is concerned, learned Additional Public Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 14/37 Prosecutor submits that this witness has stated in his examination- in-chief that on the day of Holi, the appellant had put colours on the face of the victim which was told to him by the mother of the victim but he did not know about any other occurrence. In course of his cross-examination, however, he has stated that on the day of Holi, mother of the victim told her that the victim has to be taken to the hospital, whereafter he had taken her to the hospital. It is, thus, submitted that the evidence of PW-3 at least supports the prosecution case to the extent that on the day of Holi, when the occurrence took place, the victim was taken to hospital by PW-3. Thus, learned Additional Public Prosecutor has defended the judgment of the learned trial court.
Consideration
25. The present case is based on the fardbeyan of the mother of the victim said to have been recorded on 10.02.2020 at 18:10 Hrs. First of all, we will examine the evidences placed before us with regard to the recording of the fardbeyan. In the fardbeyan (Exhibit 'P-2/PW-6'), the name of the police officer who recorded the fardbeyan is not mentioned, however, at the bottom, 'RO/AC' and signature of Neelima Kumari (PW-6) SHO is present. According to Exhibit 'P-2', the fardbeyan has been recorded in the Emergency Ward of Sadar Hospital. Contrary to Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 15/37 what is appearing in the fardbeyan (Exhibit 'P-2'), the informant (PW-2) has stated in her evidence that it was Nathuni Rai (PW-3) who had written in the application whatever she had said and read over to her on which she had put her thumb impression but in her cross-examination, PW-2 has stated that she had not made statement before police and had put her thumb impression on whatever were written by Nathuni (PW-3). It is evident that PW-2 is an illiterate lady and she was under obligation of PW-3. Surprisingly, the I.O. (PW-6) has stated that the informant had come to the police station where she (PW-6) had recorded the fardbeyan of the informant, in her handwriting. Nathuni Rai (PW-
3) has in his deposition not claimed that he had been present in the police station. His signature present on the fardbeyan as a witness has not been proved. It is, thus, evident that the prosecution story of who recorded the fardbeyan and where the fardbeyan was recorded becomes doubtful. The fardbeyan is, therefore, not free from blemish.
26. The fardbeyan (Exhibit 'P-2') is said to have been recorded on 10.02.2020 and the formal endorsement and the FIR (Exhibit '2/2-PW-6') would show that it was dispatched to the court on 10.03.2020, which seems to be highly doubtful because the formal FIR itself was registered on 10.03.2020 at 20:00 Hrs. Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 16/37 The endorsement of the learned Special Judge present on the formal FIR (Exhibit '2/2') would show that it was seen by the learned Special Judge only on 12.03.2020, therefore, it is evident that there was a delay of much more than 24 hours in sending the FIR to the jurisdictional court but the date of dispatch was wrongly shown as 10.03.2020. The ordersheet of the learned trial court recorded on 12.03.2020 clearly proves that the FIR was received in the court on the second day of registration of the FIR. It further appears that the accused-appellant was arrested from his house on 11.03.2020. He was produced in court on 12.03.2020 but the I.O. (PW-6) did not take him for medical examination as required under Section 53A of the CrPC (as it then was). We, therefore, find that in this case there is an inordinate/unexplained delay in sending the FIR to the learned jurisdictional court and there is an attempt to antedate the date of dispatch of the formal FIR by the I.O. (PW-6).
27. It has come in evidence that the appellant Subodh Rai and his brothers have enmity with Nathuni Rai (PW-3). Initially, PW-2 tried to conceal her relationship with the appellant but later on she admits that the appellant is her nephew. She further admits that she lives in her naihar and is having inimical terms with the appellant. On the face of admission of PW-2 that she as well as Nathuni (PW-3), who recorded her statement, were Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 17/37 on inimical terms with the appellant, the contradiction in the prosecution story with regard to the recording of the FIR would prove fatal to the prosecution. The person who recorded the same and the place where it was recorded as also the delay in dispatch of the FIR become significant and taken all these facts together, antedating of the FIR and change in the prosecution story cannot be ruled out. On the point of delay in dispatch of the FIR to the court of learned jurisdictional Magistrate, the Hon'ble Supreme Court has in the case of Meharaj Singh (L/Nk.) vs. State of U.P. reported in (1994) 5 SCC 188 observed in paragraph '12' as under:-
"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 18/37 receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW-8."
In the case of Chotkau vs. State of U.P. reported in (2023) 6 SCC 742, the Hon'ble Supreme Court has held in paragraph '69' as under:-
"69. On the question of compliance of Section 157(1) along with logical reasoning for doing so, the following passage from the decision in Jafarudheen v. State of Kerala8 may be usefully quoted as under : (SCC p. 462, paras 28-29)
"28. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The investigating officer is to keep the Magistrate in the loop of his ongoing investigation. The object is to avoid a possible foul play. The Magistrate has a role to play under Section 159CrPC.
8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436 Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 19/37
29. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante- timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only get bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the court concerned to take a call. Such a view is expected to be taken after considering the relevant materials.""
28. We have further found that in her fardbeyan the informant (PW-2) has stated that when she was taking bath at her darwaza at about 2 o'clock, the appellant came and asked her both the children to accompany him for a visit during Holi festival. In her presence, he took both the children with him for a visit outside.
This part of her statement does not inspire confidence of the Court because she herself says that she was not having good relationship with the appellant. In paragraph '8' of her deposition, she has stated "lqcks/k jk; vkSj gekjs chp [kkuiku Hkh can gSA igys ls eueqVko py jgk gSA". It is highly unbelievable that on the face of the kind of enmity she had with the appellant, the appellant would come and ask the children to accompany him for a visit outside and in such Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 20/37 circumstance, the informant (PW-2) would have allowed him to take away her both the children.
29. This Court further finds that according to the informant (PW-2) after the appellant had taken away both the children, within some time her son came and told her that the appellant is committing wrong act with the daughter of the informant and that she was in restless condition. On this, the informant claims to have gone to the house at some distance in the chaur where she found that her daughter was weeping and when she asked her then she told about the occurrence that the appellant had committed wrong act with her. Contrary to this statement in her fardbeyan when the informant (PW-2) came to depose in course of trial, she has stated that when her eight years old son told her that the appellant is committing wrong act with her, she immediately went there by road and found that the appellant was coming with her daughter and he had committed wrong act with her. At this stage, in her examination-in-chief, she has not stated that she had gone to the chaur and saw that her daughter was weeping there. In trial, she has stated that she saw the appellant coming with her daughter. In fardbeyan while the informant has stated that when she asked her daughter then she disclosed about the occurrence and told her that appellant had committed wrong Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 21/37 act with her but in course of trial, PW-2 has not stated that she asked her daughter and then her daughter disclosed about the occurrence. She has not stated in course of trial that her daughter said that the appellant had committed wrong act with her. This is a material variation not only with respect to the place of occurrence not being clearly established by the prosecution but also that the informant (PW-2) has not disclosed her source of information that the appellant had committed wrong act with her daughter. Further she has though claimed in her deposition that she had seen blood on the pant of the victim but she did not say this to the police which she admits in paragraph '12' of her deposition. The said blood-stained pant was not produced before the I.O. In her fardbeyan she had not stated about presence of blood on the pant of the victim, therefore, in course of trial she tried to improve upon this but the defence has taken a statement from her that in course of investigation she had not disclosed it to the police that there was blood on the pant of the victim.
30. The informant (PW-2) has admitted that she is living in her naihar and Nathuni Rai (PW-2) has hugely cooperated with her. She has stated that she had gone to Nathuni Rai and that Nathuni Rai, the appellant and his brothers are on inimical terms.
She has stated that Nathuni Rai had taken her to the police. She Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 22/37 has nowhere stated in her deposition that she had asked Nathuni Rai to take the victim to the hospital or Nathuni Rai (PW-3) had taken the victim (PW-1) to the hospital on her asking but when Nathuni Rai (PW-3) came to depose, he showed his unawareness with regard to the occurrence save and except that PW-2 had told him that the appellant had put colours on the face of her daughter, still PW-3 has not been declared hostile. PW-3 has stated that on the asking of PW-2 he had taken the victim (PW-1) to the hospital but PW-2 has not stated so.
31. In the case of Raja Ram vs. State of Rajasthan reported in (2005) 5 SCC 272, the Hon'ble Supreme Court has held that if the witness is not declared hostile then the defence can rely upon his evidence and the same would be binding on the prosecution.
32. From the evidence of PW-2 it is crystal clear that she lives in her naihar and this appellant being her nephew, she is on inimical terms with her nephew. She has initially stated in her fardbeyan that she had gone to chaur at some distance from the house told by her son but in her cross-examination, she has stated that the appellant had come from the chaur and after the road there is no house, she met one lady at that place whose husband's name is Bhudal Rai. She has stated that there was a quarrel between Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 23/37 Bhudal Rai and her in the morning that day itself and thereafter in the evening this occurrence has taken place. Contrary to this claim of PW-2, the victim (PW-1) has stated in paragraph '1' of her deposition that it was morning time, the appellant had committed wrong act with her. If it is so then the fardbeyan saying that appellant had come at 2:00 PM and had taken away both the children on the pretext of outside visit on Holi does not inspire confidence of this Court. PW-1 is a child witness. Her competence to speak truth in course of deposition has not been tested by the learned trial court.
33. This Court, therefore, finds that in this case, the informant has not proved the place of occurrence and when the I.O (PW-6) came to depose she has stated that the victim told her that after taking her from her house, the appellant started committing wrong act with her in a field and on seeing this her brother had fled away whereafter the appellant having seen that her brother was fleeing away, he left her there and fled away. Contrary to this claim of PW-6, the informant (PW-2) has stated in course of trial that she found the appellant coming with the victim girl. So this Court finds that there are material contradictions in what victim told to I.O. on the one hand and what the informant (PW-2) has deposed. According to the I.O. (PW-6), the place of occurrence is a Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 24/37 mustard plant field of one Lal Babu Rai. She had not found any mustard plant in trampled condition. In paragraph '18' and '19'of her deposition, the I.O. (PW-6) has stated as under:-
"18. ?kVukLFky okyh [ksr ds vanj ljlks dk dksbZ Hkh ikS/kk fxjk gqvk] epyk gqvk ;k eq>kZ;k gqvk ugha FkkA
19. ml [ksr esa fdlh Hkh rjg dk fu'kku geus ugha ik;kA"
The I.O. had not found soil on the clothes of the victim.
34. This Court, therefore, finds that in this case, the prosecution has not been able to prove the place of occurrence as well as the time of occurrence. On the one hand, the informant says that the appellant had taken away both her children at 2 o'clock in the daytime and only after sometime, her son came and told her that the appellant is committing wrong act with her but in her deposition PW-2 has stated that her son came after two hours whereafter she went there. She has stated that she had a quarrel with one Bhudal Rai in the morning whereafter the occurrence has taken place in the evening time but the victim (PW-
1) has stated that it was morning time, the appellant had committed wrong act with her. She does not say that the appellant came at 2.00 PM and took her with her brother outside on a visit on occasion of Holi. This Court, therefore, takes a view that the prosecution has failed to establish the place of occurrence and even the time of occurrence as alleged by the prosecution is not consistent.
Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 25/37
35. In the above background of prosecution evidence when we further look at the evidence of the victim (PW-1) it is found that she is a child witness, said to be aged about 7 years studying in Class-I but the trial court has not tested her competence to depose truth. Her statement recorded under Section 164 CrPC has not been exhibited in course of trial. As regards the requirement of conducting a test of a child witness, the Hon'ble Supreme Court has, in the case of Pradeep Vs. State of Haryana reported in AIR 2023 SC 3245 (para 9) observed as under:-
"9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the appellate court can go into the correctness of the opinion of the trial court."
36. As regards medical evidence, while doctor (PW-5) has stated that blood stains were found over medial side of thigh on both sides but the victim (PW-1), the informant (PW-2) and the I.O. (PW-6) all are consistent that there was no blood on the body of the victim. At a belated stage, PW-2 claimed that blood mark was there on the pant of the victim but before police she had not Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 26/37 stated so. The 'pant' was not handed over to the police, thus the story developed by PW-2 later on about presence of blood on the pant of the victim cannot be believed. Doctor (PW-5) has stated that there was an attempt of sexual assault. The doctor has explained that labia minora is part of vulva-vulva is in two parts one is minora which is inside vulva and can be seen from naked eyes inside. Abrasion may be caused by itching through fingers in the minora part. The another part is laibia majora which is the outer part of vulva. The doctor opined that " As hymen was intact, there was no sign on the opening part of vagina." Doctor had not collected blood and no test was done. There was no cut mark on the thigh. Doctor opined that rape was not done but there was attempt of sexual assault.
37. As regards the medical evidence, the Hon'ble Supreme Court has in the case of Baso Prasad & Ors. vs. State of Bihar reported in (2006) 13 SCC 65 held in paragraph '27' as under:-
"27. In some cases, medical evidence may corroborate the prosecution witnesses; in some it may not. The court, however, cannot apply any universal rule whether ocular evidence would be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefor."
Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 27/37
38. In the case of State of M.P. vs. Dharkole @ Govind Singh & Ors. reported in (2004) 13 SCC 308 it has been held that where the medical evidence was at variance with the ocular evidence, the testimony of the eyewitnesses should be tested independently and if found trustworthy, the same could not be discarded merely because it is at variance with medical opinion.
39. Keeping in view the aforementioned judgments, we are of the considered opinion that the presence of blood stains noticed by doctor (PW-5) over medial side of thigh on both sides cannot be correlated with the entire circumstances and the evidence of the prosecutrix/victim who has clearly stated that there was no blood on her body rather she has stated that colours were there on her face at the time of Holi. Throughout, the stand of the defence is that the case has been fabricated against the appellant on account of his enmity with the informant.
40. We have perused the statement of the appellant recorded under Section 313 CrPC. For sake of clarity, we reproduce the same hereunder for a ready reference:-
" 1- iz"u & vki fdrus lky ls tsy esa gS\ mRrj & djhc 3 lky ls tsy esa gw¡A 2- iz"u & m'kk nsoh dkSu yxsxh \ mRrj & og esjh xzkeh.k gSA jkxhuh dqekjh mudh csVh gSA 3- iz"u & gksyh ds fnu ?kVuk frfFk dks D;k gqvk Fkk\ mRrj & ugha tkurk gw¡A 4- iz"u & vki tsy esa D;ksa can gSa\ mRrj & ugha tkurk g¡wA 5- iz"u & D;k buyksxksa ls dksbZ tehu dk >XkM+k gS\ Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 28/37 mRrj & ughaA 6- iz"u & D;k vki fifM+rk ds pkpk yxrs gSa\ mRrj & gkaA 7- iz"u & D;k vkidk ?kj fifM+rk ds ?kj ds cxy esa gSa\ mRrj & th gkaA 8- iz"u & D;k vkius xokgh lquh\ mRrj & th gkaA 9 iz"u & vkids fo:) ;g vkjksi ,oa lk{; gS fd fnukad 10-03-2020 dks fifM+rk dh eka }kjk vLirky esa fn;s x, QnZc;ku ds vuqlkj mldh csVh jkfxuh djhc 5 o'kZ mez ds lkFk xyr dke djrs gq, ik;s x,\ mRrj & xyr ckr gSA 10- iz"u & vkidks lQkbZ esa dqN vkSj dguk gS\ mRrj & eSa funksZ'k gw¡A "
41. On a bare reading of the questions which were put to the appellant it would appear that the incriminating circumstances which were brought by the prosecution in course of trial against the appellant, were not at all brought to his notice during his statement under Section 313 CrPC. In question nos. 1 to 8 nothing significant has been put to the appellant. In question no. 9, the appellant was informed that there is a charge and evidence against him as per the fardbeyan of the mother of the victim that on 10.03.2020 he had been found committing wrong act with the victim girl aged about 5 years. The appellant answered that question by saying "xyr ckr gS" and in answer to question no. 10 he pleaded innocence. We find that the vital circumstances such as the fact that he had taken away the victim from her house in presence of her mother on 10.03.2020 at 2:00 PM on the pretext of taking her outside for a visit on the occasion of Holi was not brought to the notice of the accused. It was not brought to his Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 29/37 notice that as per the prosecution he had committed sexual act with the victim in the chaur. Neither the time of occurrence nor the place of occurrence were brought to the notice of the appellant. The medical opinion and the evidence of the doctor as also evidence of the prosecutrix and her mother were not brought to the notice of the appellant. Thus, a valuable right granted to an accused at the stage of 313 CrPC has been taken away. It was the duty of the learned trial court to ensure that all such incriminating circumstances which were likely to go against the accused be brought to his notice. The learned trial court has failed to do so. In this connection, we would refer Constitution Bench judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116. Paragraph '143' is reproduced hereunder for a ready reference:-
"143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz. Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16 and
17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh14 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used
14. AIR 1953 SC 468 : 1953 Cri LJ 1933 Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 30/37 against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra15 this Court held thus: [SCC para 5, p. 440: SCC (Cri) p. 58] "The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him."
42. In the case of Sukhjit Singh vs. State of Punjab reported in (2014) 10 SCC 270, the Hon'ble Supreme Court has reiterated the same which we reproduce hereunder:-
"12. In Hate Singh Bhagat Singh v. State of Madhya Bharat4, Bose, J. speaking for a three- Judge Bench highlighting the importance of recording of the statement of the accused under the Code expressed thus: (AIR pp. 469-70, para 8) "8. Now the statements of an accused person recorded under Sections 208, 209 and 342, Criminal Procedure Code are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box."
13. The aforesaid principle has been reiterated in Ajay Singh v. State of Maharashtra5 in following terms: (SCC pp. 347-48, para 14)
15. (1976) 1 SCC 438 : 1976 SCC (Cri) 56
4. AIR 1953 SC 468 : 1953 Cri LJ 1933
5. (2007) 12 SCC 341 : (2008) 1 SCC (Cri) 371 Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 31/37 "14. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give."
43. Now coming to the submission of the prosecution that there will be a presumption of guilt against the accused in view of Section 29 of the POCSO Act, we are afraid that there seems to be some misconception with regard to the presumption as envisaged under Sections 29 and 30 of the POCSO Act. We reproduce Sections 29 and 30 of the POCSO Act as under:-
"29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 32/37
30. Presumption of culpable mental state.--(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."
44. We will discuss some case laws on the subject. In the case of Joy vs. State of Kerala reported in (2019) 1 KLT 935, it has been held that the duty to rebut the presumption arises only after the prosecution has established the foundational facts of the offence alleged against the accused and the court must be on guard to see that the application of presumption, without adverting to essential facts shall not lead to injustice. In case of Veerpal @ Titu versus State (CRL.A.223/2023 dated 15th April, 2024), the Hon'ble Delhi High Court has discussed the kind of presumption provided under Section 29 of the POCSO Act. It has been held that the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 33/37 witnesses through cross-examination and demonstrating the gaps in prosecution version or improbability of the incident or lead defence evidence in order to rebut the presumption by way of preponderance of probability. Similar view has been taken by the Hon'ble Division Bench of Calcutta High Court in the case of Subrata Biswas and Another versus State reported in 2019 SCC Online Cal 1815. This Court had also occasion to deal with this issue in the case of Bachcha Kumar @ Baccha Kumar @ Bachcha Kumar Singh vs. The State of Bihar and Anr. in Criminal Appeal (DB) No. 406 of 2022. Having taken note of all the aforementioned case laws as mentioned above, this Court has quoted paragraph '99' and '101' of the judgment of the Hon'ble Supreme Court in case of Ramanand vs. State of U.P. reported in AIR 2022 (SC) 5273. We reproduce paragraph '99' and '101' hereunder:-
"99. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. In American Jurisprudence, 2nd Edn., Vol. 30, the expression "preponderance of evidence" has been defined in Article 1164. In America the term means "the weight, credit and value of the aggregate evidence Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 34/37 on either side, and is usually considered to be synonymous with the term greater weight of the evidence", or "greater weight of the credible evidence". It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of "preponderance of evidence". The phrase "preponderance of probability" appears to have been taken from Charles R. Cooper v. F.W. Slade Charles R. Cooper v. F.W. Slade, (1857-59) 6 HLC
746. The observations made therein make it clear that what "preponderance of probability" means "more probable and rational view of the case", not necessarily as certain as the pleading should be.
101. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise The Law of Evidence, 5th Edn. by Ian Dennis at p. 445:
"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the fact-finder in a situation of uncertainty. Another function is to allocate the risk of mis-decision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 35/37 a presumption that the defendant is innocent therefore requires the State to prove the defendant's guilt."
45. In the present case, we have discussed the entire prosecution evidence hereinabove. Material contradictions have been noticed in the statement of the prosecution witnesses. In fact there is a huge doubt as to who, when and where recorded the statement of PW-2 as fardbeyan which has given rise to the present case. There is delay in sending of the FIR to the jurisdictional Magistrate, antedating of the FIR is an irresistible conclusion of this Court and further the trial court has not tested the competence of the child witness whose testimony as recorded gives a completely different time of occurrence. We are, therefore of the considered opinion that in this case, the prosecution has not been able to prove the foundational facts as required to raise the presumptions under Section 29 and 30 of the POCSO Act. On the other hand, the accused-appellant has been able to demonstrate that the informant (PW-2) and Nathuni Rai (PW-3) both were on inimical terms with him and for that reason, his false implication in this case cannot be ruled out. In the case of Anil Rai vs. State of Bihar reported in AIR 2001 SC 3173, the Hon'ble Supreme Court has held inter alia that "... In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 36/37 to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity..."
46. In our considered opinion, the learned trial court has failed to appreciate the evidences available on the record with circumspection and care keeping in view that the prosecution witnesses such as PW-2 and PW-3 were inimical to the appellant and the victim (PW-1) being a child witness was in company of PW-2, therefore her chances of being tutored during the gap of one and half year between the date of occurrence and the time of her deposition was very much present her. Her initial statement made before the I.O. (PW-6), as disclosed by the I.O. in her deposition, differs from that of her statement in course of trial.
47. To this Court, it appears that the trial court has also not considered the evidence of the defence witness namely Ramvilas Rai who has stated that the appellant is a person having family, he has got three children and had not committed any wrong act with the daughter of the informant. The defence witness has also stated about the quarrel which had taken place between the appellant and the informant two days prior to the occurrence. The learned trial court in course of appraisal of the evidences on the record did not even analyse and record its opinion on the defence evidence.
Patna High Court CR. APP (DB) No.248 of 2023 dt.18-11-2025 37/37
48. In ultimate analysis, we are of the considered opinion that it would not be safe to sustain the conviction of the appellant in this case. We, therefore set aside the impugned judgment and order of the learned trial court. The appellant is acquitted of the charges giving him benefit of doubt. He shall be released forthwith, if not wanted in any other case.
49. This appeal is allowed.
50. Let a copy of this judgment together with the trial courts' record be sent down to the learned trial court.
51. We acknowledge the assistance rendered by Ms. Surya Nilambari, learned Amicus Curiae in this appeal. In token of her assistance, we direct that she shall be paid a sum of Rs. 15,000/- (Fifteen Thousand) by the Patna High Court Legal Services Committee within one month from the date of receipt of a copy of this judgment.
(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 26.11.2025 Transmission Date 26.11.2025