Patna High Court
Bachcha Kumar @ Baccha Kumar @ Bachcha ... vs The State Of Bihar on 23 June, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.406 of 2022
Arising Out of PS. Case No.-109 Year-2021 Thana- MAHILA P.S. District- Patna
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Bachcha Kumar @ Baccha Kumar @ Bachcha Kumar Singh, Son of Late
Sukhnandan Singh, Resident of Mohalla - Garvuchak, Jagdeo Path, P.S. -
Hawai Adda, District - Patna.
... ... Appellant
Versus
1. The State of Bihar
2. 'X', C/O Sri Priyadarshi Sahu, Resident of Mohalla-Flat No. 101, Shivam
Vihar Apartment, 1st Floor, Anandpuri, P.S.-S.K. Puri, District-Patna.
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Sunil Kumar Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 23-06-2025
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State. Despite the service of
notice on respondent no. 2- the informant, she has chosen not to
enter appearance.
2. The present appeal has been preferred for setting
aside the judgment of conviction dated 29.04.2022 (hereinafter
referred to as the 'impugned judgment') and the order of sentence
dated 30.04.2022 (hereinafter referred to as the 'impugned order')
passed by learned Additional Sessions Judge-VI-cum-Special
Judge, POCSO Act, Patna (hereinafter called the 'learned trial
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025
2/46
court') in Spl. (POCSO) Case No. 126 of 2021 arising out of
Mahila P.S. Case No. 109 of 2021.
3. By the impugned judgment, the appellant has been
convicted for the offence under Sections 342 and 376-AB of the
Indian Penal Code (in short 'IPC') and Section 4 of the Protection
of Children from Sexual Offences Act (in short 'POCSO Act') and
by the impugned order, the appellant has been directed to undergo
rigorous imprisonment for life with a fine of Rs. 20,000/- under
Section 376-AB of the IPC read with Section 4 of the POCSO Act.
The appellant has been further directed to undergo imprisonment
for one year and fine Rs. 1,000/- for the offence under Section 342
of the IPC. Both the sentences are to run concurrently.
Prosecution Case
4. The prosecution story is based on the fardbeyan of
the informant (PW-1) who is a ten year old girl and studies in
Class-V. In her fardbeyan, the informant alleged that on
07.09.2021at around 2:20 in the afternoon, she was studying sitting on the bed in her room. At the same time, Baccha Kumar (the appellant) who is cook in her house came to her room to take the salt box kept on her table and sat on the bed. It is further alleged that when the informant asked the appellant why he was sitting on her bed, he closed the door from inside and started Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 3/46 pressing her legs. When she denied and objected then the appellant said that he would give her money and showed her money and said don't tell about this to mother and put his hand inside her T-shirt and started touching her body, then he put his hand inside her panty and started touching her private part with his finger. It is alleged that when she started shouting and calling her mother, she could not talk to her and the appellant snatched her phone. After that he was sitting and doing something which the informant didn't know and then he opened the door and went outside. Before going out, he said don't tell mother, he will give money and will cook her favourite dishes. It is alleged that when the appellant went outside, informant told about this occurrence to Rajeev and called her mother and told her everything.
5. On the basis of this written application, Mahila P.S. Case No. 109 of 2021 dated 07.09.2021 was registered under Sections 342/376 AB IPC and Section 4/6 of the POCSO Act. After investigation, Police submitted chargesheet bearing No. 118 of 2021 dated 03.11.2021 against this appellant under Sections 342 and 376 AB IPC and Section 4/6 of the POCSO Act. On the basis of the chargesheet, learned trial court took cognizance of the offences vide order dated 15.11.2021. Charges were read over and explained to the appellant in Hindi to which he pleaded not guilty Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 4/46 and claimed to be tried. Accordingly, vide order dated 29.11.2021, charges were framed under Sections 342 and 376AB IPC and Section 4, 6 and 8 of the POCSO Act.
6. In course of trial, the prosecution examined as many as eight witnesses and exhibited several documents to prove the prosecution case. The defence also examined three witnesses. The list of the prosecution witnesses and the defence witnesses as also the exhibits produced on behalf of the prosecution are being shown hereunder in tabular form:-
List of Prosecution Witnesses PW-1 Victim (X) PW-2 Mother of the victim PW-3 Father of the victim PW-4 Dhanoj Kumar Ram PW-5 Dr. Partiva Kumari PW-6 Suhani Jain PW-7 Ashu Kumar Jha PW-8 Kishori Sahchari List of Exhibits brought on behalf of the Prosecution Exhibit Number Document Ext. P- 1 Signature of Victim on written report Ext. P- 2 Signature of victim on the statement u/s 164 of Cr. P.C. Ext. P- 3 Medical Report dt. 08.09.2021 Ext. P- 4 Medical Report dt. 21.09.2021 Ext. P- 5 Medical Report dt. 17.11.2021 Ext. P- 6 F.S.L. Report dt. 20.09.2021 Ext. P- 7 F.S.L. Report dt. 02.11.2021 Ext. P- 8 Endorsement of registration by S.H.O. on Fardbeyan of Victim Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 5/46 Ext. P- 9 Formal FIR Ext. P- 10 Seizure list Ext. P- 11 Seizure list regarding mobile Ext. P-12 Certificate regarding C.D.R. signed by Rajiv Kumar List of Defence Witnesses DW-1 Pinki Devi DW-2 Amit Kumar DW-3 Kajal Kumari List of Exhibits produced on behalf of Defence Exhibit Number Document Ext.-A Prescription of Dr. Rajeev Ranjan Ext.- A/1 Prescription of Dr. Ramakant Kumar Ext.- A/2 Prescription of Dr. Rajeev Ranjan Prasad dt.
22.11.2021
Ext.- A/3 Application submitted to Sr. S.P.
Ext.- A/4 Receipt of registry
Ext.- A/5 Information issued by Sr. S.P. dt. 04.02.2022
Ext.- A/6 Envelop of speed post
Ext.- A/7 Cutting of postal order
Ext.-A/8 Receipt of registry
Ext.- A/9 Reply of Sr. S.P. dt. 18.02.2022
Ext.-A/10 Envelop of Speed post
Ext.-B Postal receipt no. EF518127765IN
Findings of the Learned Trial Court
7. Learned trial court after analysing the evidences available on the record found that on the point of occurrence, witnesses, namely, Victim, Mother and father of the victim and one Dhanoj Kumar was examined. Learned trial court found that there Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 6/46 is not a single suggestion by the defence that the accused was arrested and kept at Mahila Police Station since 10:00 AM.
Learned trial court further found that I.O. repeatedly stated that she had taken the CDR of the accused, informant and other persons who were present at the place of occurrence which shows that the location of the mobile of the accused was found at the place of occurrence, however, the I.O. has stated that she missed to attach CDR with the case diary.
8. Learned trial court found that the prosecution has successfully proved its case against the accused beyond all reasonable doubts. Accordingly, the appellant was convicted for the offence under Sections 342 and 376-AB IPC and Section 4 of the POCSO Act.
Submissions on behalf of the Appellant
9. Mr. Sunil Kumar Singh, learned counsel for the petitioner has assailed the impugned judgment of conviction on various grounds. It is his submission that the evidences on the record would show that the appellant in this case was an employee of BMP-5 and was posted to do official work as "JAL WAHAK" but the mother of the victim was forcing him to work as a cook at her residence. At the relevant time, the mother of the victim girl was posted as Deputy Inspector General of Police (Wireless) at Patna. The alleged Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 7/46 occurrence took place on 07.09.2021 at about 2.20 pm when the victim girl was in her room busy in study on her bed. According to the fardbeyan of the victim (X), this appellant had entered into her room to take the dabba of salt which was lying on the table in her room. It is alleged that the appellant sat on the bed, closed the door and started pressing the leg of the victim girl which she objected to but the appellant showed her currency note (rupiah) and asked her not to disclose it to her mother. It is further alleged that he put his hand inside her t-shirt and started touching her body, then he put his hand inside her panty and he started touching her private part by inserting his finger. The victim alleged that when she started shouting and was calling her mother on phone, she could not talk to her mother and her mobile phone was snatched by the appellant. He thereafter opened the door and went outside. The appellant told her not to disclose it to her mother and allured her to give money and to make dishes of her choice. It is submitted that the victim claimed to have disclosed this occurrence to Rajeev who is another employee in the house and made a call to her mother and told her the entire occurrence. Rajeev has not been examined in this case.
10. It is submitted that in her 164 CrPC statement, the victim (X) has stated that the appellant was engaged in inserting his finger for half an hour, however, the medical examination of Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 8/46 the victim girl did not disclose any sign of redness, tenderness or swelling of the labia majora and labia minora, clitoris or any other part of the vagina. Referring to Twenty Seventh Edition of Modi Textbook of Medical Jurisprudence and Toxicology, learned counsel submits that in course of her medical examination by Dr. Partiva Kumari (PW-5), the victim did not disclose any information regarding attempted or committed penetration by finger in vagina. Doctor (PW-5) has deposed that during the examination of the private part of the victim she had not found any blood or sign of nail scratch. In paragraph '20' of her deposition, she has stated that in her medical report, she had not given any information with regard to any kind of sexual assault on the victim.
11. According to the standard procedures which are required to be adopted in course of local examination of genital parts, paragraph '18' under Chapter 32 of the "Modi A Textbook of Medical Jurisprudence and Toxicology" provides that in course of female survivors, the vulva is inspected systematically for any signs of recent injury such as bleeding, tears, bruises, abrasions, swelling or discharge and infection involving urethral meatus and vestibule, labia majora and minora, fourchette, introitus and hymen. In the present case, PW-5 has not found any sign of Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 9/46 penetration of finger and in fact, the medical evidence completely rules out the allegations.
12. Learned counsel further submits that in this case, the victim ('X') cannot be put in the category of sterling witness. According to him, the evidences on the record would show that the appellant was not willing to work in the residence of the officer, he wanted to get released but he was not allowed to do so. On 07.09.2021, he was brutally assaulted in the house of the mother of the victim girl, he was badly injured and bleeding. The I.O. (PW-8) has stated in her deposition that when she reached the place of occurrence, she had noticed that the appellant had received some injuries, she had taken the appellant to the hospital for his medical examination. She had seized the underwear and full pant of the appellant and prepared a seizure list (Exhibit '10'). It would appear from the FSL report (Exhibit '7') proved by the Assistant Director, Forensic Science Laboratory, Patna (PW-7) that exhibit marked 'B' was the blood stained full pant cutting and the FSL report shows blood on the full pant of the appellant which clearly proves that due to assault given to him in the house of the victim, he was bleeding and the blood had fallen down on his full pant also. This condition of the appellant was seen by his wife Pinki Devi (DW-1) who has stated in her deposition that her husband Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 10/46 had gone on duty at 08:30 AM on 07.09.2021 and had asked her to come in the 'Kothi' of Madam at 10:00 AM from where he had to take her to Dr. Ramakant Kumar for consultation. According to DW-1, when she reached 'Kothi' with her son Amit Kumar then Rajeev Paswan (not examined) met there, her son requested him to call his father on which Rajeev Paswan told him that his father was not there and he had been taken to police station of Mahila Thana. Thereafter, DW-1 informed it to her daughter and son-in-law and all of them reached police station at 11:30 AM whereafter on much request, she was allowed to meet her husband in the Hazat. Her husband told her that Madam and Imran both had brutally assaulted him by iron rod because he had reached with some delay for cooking. Her husband was showing his injured head and tears of his hand and legs and blood had also fallen on his cloth. It is submitted that DW-1 has proved the medical prescription (Exhibit 'A') of the Dr. Rajiv Ranjan who was treating her.
13. DW-1 has also stated that she had made an application under Right to Information Act to obtain CCTV footage of Mahila Thana from 07.09.2021 (10:00 AM) to 08.09.2021 (02:00 PM). She has proved the application and the Registry Receipt as Annexure 'A/3' and Annexure 'A/4' respectively. She has also proved Exhibit 'A/5' which is the reply Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 11/46 of the Senior Superintendent of Police-cum-Public Information Officer, Patna dated 04.02.2022 whereby she was informed that CCTV footage is not a public document, therefore, it cannot be made available to her. She has also proved Exhibit 'A/7' and 'A/8' which are her memo of appeal before the First Appellate Authority and the Registry Receipt. Again, the First Appellate Authority did not provide her the CCTV footage of the police station. She has proved the communication received from the First Appellate Authority as Exhibit 'A/9'. It is further submitted that the appellant had filed an application in the trial court to direct the prosecution to produce CCTV footage of Mahila Thana but the said application was rejected by the learned trial court vide order dated 24.02.2022. Thus, prosecution tried its level best to suppress a vital piece of evidence. DW-1 has stated that her husband was not willing to work in the residence of Madam. She has stated that she had gone to Mahila Thana to lodge the complaint after two days but she was made to go away. It is submitted that the fact that the appellant was arrested from the house of the victim girl in injured condition is duly proved from the evidence. The fact that his injury report has been suppressed by the prosecution only shows that the present case has been lodged as an after-thought after the mother of the victim girl sensed that the appellant or his Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 12/46 family member may lodge a case for the assault and injuries caused to him.
14. Learned counsel submits that from the evidence of DW-1 and DW-2, it would be evident that the appellant had been arrested and put in Hazat of Mahila Police Station at around 10:00 AM itself. The prosecution has not questioned the assertion of DW-1 and DW-2 both that the appellant used to go to his duty at 8 O'clock in the morning and he used to return at 12:00 Noon. The prosecution has not suggested that DW-1 and DW-2 were not correct in giving the duty time of the appellant. According to learned counsel for the appellant, it is a case of anti-timing of the FIR.
15. It is submitted that in his 313 CrPC statement, appellant has stated that the victim's mother used to force him to cook the food at her residence, both the victim's mother and the victim used to abuse him, he did not want to work at the victim's house. On the date of occurrence, he went to work late then victim's mother started abusing saying that he has to attend meeting and he has not prepared the food then he replied he will not cook food then Imran assaulted him by iron rod causing bleeding from head. When the appellant was going to lodge a case then he was confined in a room and police was called. Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 13/46
16. Learned counsel submits that in this case, the victim has stated in her fardbeyan that she told about the occurrence to Rajeev who is an employee but Rajeev has not been examined in course of trial. In her 164 CrPC statement, she has stated that when Rajeev did not pay heed to her grievance against the appellant, she told the entire things to Brahmdeo, Pramod, Dhanoj and Vijender but they did not do anything. She has stated that at the time of occurrence, Brahmdeo was in the kitchen washing utensils. He heard her shouts but did not come. Brahmdeo has not been examined in this case, Pramod and Vijender have also not been examined. From amongst three, the only witness who came to depose is Dhanoj Ram (PW-4) who has stated in his examination- in-chief that he was working at the residence of the mother of the victim girl on the date of occurrence. He has stated that the victim girl came weeping to him and told him that the appellant had committed wrong act with her whereafter he inquired from the appellant but the appellant did not give any reply. In his examination-in-chief, he had not given the time of occurrence and he has stated that he is an employee in the Wireless Department. He has been appointed on compassionate ground and he was deputed at the residence of Madam. He denied the suggestion that he had not told that the victim had told him that the appellant had Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 14/46 committed wrong act with her. He denied the suggestion but the I.O. (PW-8) has stated that Dhanoj Ram had only told her that the appellant had not replied anything.
17. Learned counsel submits that the I.O. has proved the CDR in Form-IV and the certificate issued by the Incharge Officer (Wireless Unit) on which constable Rajiv Kumar had put his signature, he has proved it (Exhibit '12' with objection). In his cross-examination, the I.O. (PW-8) has stated that according to CDR, the mobile number of the appellant is 8252323866 and 8002443695 but the mobile location according to the CDR is not attached to the case diary and the document. It is, thus, submitted that the prosecution has not proved the presence of the appellant at the location i.e. the house of the mother of the victim girl at the time of occurrence. The learned trial court could not appreciate that there was no material with the case diary to prove the location of the appellant in the house of the mother of the informant between 02:00-03:00 PM on 07.09.2021.
18. It is also pointed out that the I.O. (PW-8) has contradicted the victim girl with regard to her statement in course of trial that earlier also prior to the occurrence, when she was preparing noodles in the kitchen then this appellant was repeatedly getting close to her and when she asked him as to why he was Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 15/46 doing so, he said that he was looking at the noodles. She has stated that she had not disclosed this to her mother. The I.O. has stated that in course of investigation, the victim girl had not told her that prior to the occurrence when she was preparing noodles, this appellant had repeatedly touching towards her body and when she asked him as to why he was doing so, the appellant told that he was looking at the noodles. It is submitted that this contradiction taken from the I.O. would prove that the victim girl is not a sterling witness and the conviction of the appellant on the basis of her sole testimony would not be safe.
19. Learned counsel submits that it is a case of false implication by the mother of the victim girl and it is one of those cases in which in order to save herself from the allegation of brutal assault made upon the appellant which caused him injuries, this case was set up later on by showing the time of occurrence between 02:00-03:00 PM. The FIR was lodged at 08:00 PM on 07.09.2021 whereas according to the prosecution witness (PW-4), police had arrived at the residence of Madam in between 02:00- 03:00 PM. The I.O. has stated in her deposition (paragraph '31') that she got information about the occurrence on 07.09.2021 at 20:00 hours from the Officer Incharge of Shrikrishnapuri. She has then stated that she had got telephonic information from the Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 16/46 Officer Incharge of Shrikrishnapuri Station at 16:20 hours but after that information, she had not received any written information at the police station. She has stated that she had gone to the place of occurrence with her bodyguard and ASI Usha Sinha (both not examined) and she had found sign of injury on the body of the appellant. She had prepared the seizure list at 06:30 PM on 07.09.2021. It is submitted that from the entire evidence on record, it may be found that the time of occurrence and recording of the FIR have been manoeuvred and manipulated. The Officer Incharge of Shrikrishnapuri Police Station who informed the I.O. has not been examined. What information was given to the I.O. has not been recorded. The delay of six hours in lodging of the FIR further creates doubt on the prosecution story in the facts of the present case. On this ground, learned counsel for the appellant submits that the learned trial court has committed error in appreciation of the evidences on the record. The impugned judgment and the order are not based on the cogent evidence and the same are liable to be set aside.
Submissions on behalf of the State
20. Mr. Ajay Mishra, learned Additional Public Prosecutor for the State has opposed the submissions of learned counsel for the appellant. It is submitted that the victim in this case Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 17/46 was aged about 11 years at the time of occurrence. She has been found a minor and her evidence alone is sufficient to prove the guilt of the appellant.
21. Learned Additional Public Prosecutor for the State, however, submits that from the evidence of the I.O. and the FSL report (Exhibit '7'), it appears that the appellant had received some injuries and blood had fallen down on his pant, he was taken to hospital for medical examination but it seems that his injury report has not been brought on record by the prosecution. This Court may, however, not draw any adverse inference on account of non- production of the injury report of the appellant.
22. Learned Additional Public Prosecutor further submits that no doubt the medical evidence (Exhibit '4') does not record any finding of sexual assault upon the victim girl and it nowhere mentions of any mark of injury on her body or her private part to prove the case of sexual assault but the proof of injury on the private part of the victim may not be required. It is submitted that in view of the evidences available on the record, learned trial court has rightly convicted the appellant.
Consideration
23. Having heard learned counsel for the appellant and learned Additional Public Prosecutor for the State as also on Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 18/46 perusal of the records, this Court finds that in her fardbeyan, the victim girl (PW-1) has stated that she was aged about 10 years. She has given the time of occurrence as 02:20 PM on 07.09.2021. The victim has stated that at the time of occurrence, Manoj, Dhanoj (PW-4) and other persons were present in another room. Brahmdeo was living whole time in the house whereas other persons were coming and going. So PW-1 has not given any definite duty hour of the appellant.
Presence of the appellant in house at the time of occurrence
24. As regards the presence of the appellant at 02:20 PM on 07.09.2021 in the residence of the mother of the victim, the defence has seriously questioned it. During cross-examination, prosecution witness nos. 1, 2 and 3 were suggested that no such occurrence had taken place. The defence through the wife (DW-1) and son (DW-2) of the appellant, has submitted that the appellant was taken to Mahila Police Station prior to 10:00 AM because when DW-1 and DW-2 reached at Shivam Apartment and asked Rajeev Paswan to tell this appellant that they had to go to doctor, Rajeev Paswan disclosed that the appellant was not there and he was taken to police station of Mahila Thana. Rajeev was working as a sweeper, though a chargesheet witness but has not been Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 19/46 produced by the prosecution which has seriously prejudiced the defence of the appellant.
25. DW-1 has stated that she, her son, daughter and son- in-law all reached at the police station at 11:30 AM. DW-1 met the appellant in Hazat where she was shown the injured head, hand and leg from which blood had fallen on the cloth. The prosecution case is that the occurrence took place between 02:00-03:00 PM but the defence witnesses have stated that the appellant was in Hazat at 11:30 AM. DW-1 had also applied for CCTV footage of Mahila Police Station for the period 07.09.2021 (10:00 AM) to 08.09.2021 (02:00 PM). This was not provided to DW-1 despite her attempt to pursue the matter till the First Appellate Forum. The application filed by the appellant for this purpose in the trial court was rejected vide order dated 24.02.2022. The I.O. has stated that when she reached the flat of PW-2, she found that the appellant had suffered some injuries, he was taken to hospital but the injury report of the appellant has been conspicuously suppressed. Therefore, this Court finds that the prosecution in this case has suppressed two material evidences. The first material evidence is the injury report of the appellant and the second one is the CCTV footage of the police station. The defence of the appellant is that he was not willing to do duty at the residence of Madam (PW-2) because the Madam Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 20/46 and her daughter were always hurling abuses on him and were harassing him. It is evident from the record that the appellant was not an employee in Wireless Department where Madam was posted as D.I.G., therefore, the case of the prosecution that appellant was posted at the residence of Madam has no basis to stand. In fact, Dhanoj (PW-4) has deposed that apart from him two persons from his department and two Homeguards were deputed. So far as this appellant is concerned, he is not from the same department and no document has been proved by the prosecution to show that this appellant who was working as "JAL WAHAK" in Bihar Military Police (BMP) was deputed at the residence of PW-2 for cooking. DW-1 has stated that the appellant was telling her that Madam threatens to him that if he would not do duty then she would take away his job. The prosecution has not suggested that this assertion of DW-1 was not correct.
26. This Court finds that in this case, the victim girl (PW-1), her mother (PW-2) and her father (PW-3) all have stated that the occurrence took place between 02:00-03:00 PM on 07.09.2021. PW-3 has stated in his examination-in-chief that at about 02:00 PM, he had made a call at the mobile of the victim girl to know that how was her examination. The phone rang full but the victim did not pick up the call. This statement of PW-3 is not Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 21/46 consistent with the statement of the victim girl, she has not stated that she had got any telephone call from her father which she did not pick up. It is also evident from the deposition of PW-3 that on 07.09.2021, the victim girl had gone for some examination. The prosecution has not disclosed that till what time the victim was attending her examination and at what time she came back to her residence. The victim girl has stated in her 164 CrPC statement that the appellant had penetrated his finger inside her private part and he was doing it for half an hour. She has stated that during this period, she was shouting but no one came. The place of occurrence according to the I.O. is a flat in Shivam Vihar Apartment. The victim was studying in one of the rooms. According to her statement, several persons were present in one of the rooms in the flat. She claims to have shouted but no one came for half an hour seems to be unbelievable. According to the statement, she had disclosed the occurrence firstly to one of the employees, namely, Rajiv but Rajiv has not been examined in this case. Out of Brahmdeo, Pramod and Dhanoj, only Dhanoj has been examined. Dhanoj has not given the time of occurrence in his deposition. He has only stated that on the date of occurrence, he was engaged for work at the residence of the mother of the victim girl and he was working there. The victim told him that the appellant had Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 22/46 committed wrong act with her. This witness is an employee of the mother of the victim. In his cross-examination, he has stated that the assault on the appellant had not taken place in his presence and he was not aware that any assault had been done on the appellant. It is evident from his statement that he being the employee of the mother of the victim girl is trying to suppress the fact that the appellant was assaulted in the house of the mother of the victim and he was injured in the said assault. He claims to have left the residence of PW-2 after his duty hour. According to him, his duty hour was upto 05:00 PM. It seems highly improbable that I.O. would come at 04:20 PM and during that period PW-4 would leave the place without giving his statement. In paragraph '23' of his deposition, he has stated that the Darogaji had inquired from him once after 3-4 days. From case records, it appears that PW-4 was examined by I.O. on 13.09.2021 i.e. after six days of the occurrence. To this Court, it appears that this witness PW-4 is not an independent witness and does not corroborate the claim of the victim that she was shouting from the room. He has not stated to have seen entering into or coming out of appellant from the room of the victim. In a three bedroom flat if out of five employees, one of them would close himself in a room for half an hour, it seems difficult to take a view that no one would notice it. Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 23/46
27. The evidence of the doctor (PW-5) would be important to take note of. PW-5 had examined the victim girl on 08.09.2021 at 04:40 PM. Why victim was taken to the doctor after 24 hours in contravention of Section 164A CrPC is not known. It only shows that the prosecution was not taking it seriously to collect evidence. Prosecution knew that no evidence of entering finger in the vagina of victim that too for half an hour would be found. PW-5 has stated that when she physically examined, she found no mark of injury on her body. No menarche, vagina found healthy, no discharge. In her cross-examination, PW-5 has stated that during examination of the private part of the victim, she had not found any sign of nail scratch. At this stage, this Court finds that according to the victim girl, she was opposing the appellant in inserting the finger in her private part, it is not her case that she ever tried to flee away from the room but she was forcibly put under constraint by the appellant. Doctor has found her height 4 feet 9.7 inch, weight 44.5 kg, teeth upper - 7 + 7, lower 6 + 6 numbers. She did not try to save herself and had she resisted physically, there would have been some sign of scratch or abrasion on her body. It is difficult to believe that for half an hour, the appellant continued with penetration of finger in her private part but the doctor did not find any redness, tenderness or swelling in Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 24/46 the private part of her body. In this regard, a glance over the relevant paragraph under Chapter 32 of "Modi A Textbook of Medical Jurisprudence and Toxicology" (Twenty Seventh Edition) dealing with the sexual offences and medical examination of a child reads as under:-
"32.3.6 Medical Examinations of a Child The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164-A of the Code of Criminal Procedure, 1973 (2 of 1974). In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence. Where, in case the parent of the child or other person cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution. When such medical examination or medical treatment is undertaken with the consent of his parents or guardian, it cannot constitute any offence under the Act. ...."
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 25/46 In this case, PW-5 has not recorded any opinion regarding sexual assault. He had not asked PW-1 regarding the occurrence which took place with her.
28. The guidelines for health professionals, when a survivor of violence reports to a hospital, describes in detail step wise approach to be used by the comprehensive response to the sexual violence survivor. The evidences are to be collected as per the protocol and documentation is to be done. The sexual violence history may be recorded creating an environment of trust. The doctor should record complete history of the incident of survivor in own words and it has evidentiary value in the eye of law (paragraph '15' under Chapter 32 of "Modi A Textbook of Medical Jurisprudence and Toxicology" (Twenty Seventh Edition)). On examination of the genital parts, in case of female survivor, the vulva is inspected systematically for common sign of recent injury such as bleeding, tears, bruises, abrasions, swelling or discharge, infection involving urethral, meatus and vestibule, labia majora, labia manora, forchette, introitus and hymen (paragraph '18' under Chapter 32 of "Modi A Textbook of Medical Jurisprudence and Toxicology" (Twenty Seventh Edition)).
29. In the present case, doctor (PW-5) has neither recorded any statement of the victim, any history of sexual Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 26/46 violence while examining the victim (PW-1) nor he found any sign of penetration of finger in the vagina of the victim girl. The victim girl was taken to doctor (PW-5) by a lady constable only on the next day of the occurrence after 24 hours. The reports dated 08.09.2021, 21.09.2021 and 17.11.2021 issued by the doctor (PW-
5) have been marked Exhibit '3', '4' and '5' (with objection) respectively which are being reproduced hereunder for a ready reference:-
"Exhibit 3 To The Officer In charge Mahila Thana Gardani Bagh Patna.
Examined PRACHI PALLAVI D/o Sri Priyadarshi Sahoo Flat No. - 101(1st floor) Shivam Vihar Apartment Anandpuri P.S. S.K. Puri Patna on 08.09.2021 at 4.44 P.M. ER No. 3563/08/09/2021. Brought by Ranjana Kumari lady constable 5359 and found the Mahila Thana Case No. 109/2021 dated 07.08.2021 u/s IPC 342/376(AB) IPC & 4/6 POSCO Act.
Found the following.
Mark of Identification :- Black spot on right leg below ankle joint in medial aspect.
2. Old cut scar mark on left side of forehead above left eye.
Physical Examination :- Height - 4 ft. 9.7 inch. Weight - 44.5 Kg. Teeth upper - 7+7, lower - 6+6. No mark of injury found on her body.
Secondary Sexual Character developed. Breast developed. Axillary & Public hair present - No. menarche.
No mark of injury found on private part. Vagina found healthy, no discharge.
Vaginal Swab taken and slide prepared, slide sealed in a nenvelope & sent to Dept of Pathology PMCH. Patna for presence of sperm or not.
Prachi Pallawi Shaoo sent along the lady constable to PMCH Dept of Radiology for Xray of different parts for determination of age.
Exhibit 4 Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 27/46 To The Officer In charge Mahila Thana Gardani Bagh Patna.
Regarding the final report received from Dept of Pathology Patna Medical college Patna on 21.09.2021. of Ms. PRACHI PALLAVI D/o Sri Priyadarshi Sahoo Flat No. - 101(1st floor) Shivam Bihar Apartment Anandpuri P.S. S.K. Puri Patna Vaginal/Anal swab smear slide for presence of spermatozoa, SPERMATOZOA - Spermatozoa not found in provided smear Accordance to the Physical examination & Pathological report - No sign seen. It will be decided by the court regarding the sexual assault. X ray report - Received from PMCH from dept. of Radiology of Prachi Pallavi Sahoo Xray No. 778 on
09.09.21 M.I. 1- Black spot on rt. leg below ankle Joint in medial aspect.
2- Old cut mark scar on left side of forehead above left eye.
Report X-ray- Both elbow (AP view) there is in-
complete fusion of epiphysis of the medial epicondyle of humerus on both sides.
There is incomplete fusion of epiphysis of head of radius on both sides. In female, the epiphysis of the medial epicondyle of Humerus fuses at the age of 14 years. In female, the radial head epiphysis fuses at age of 14 years.
X-ray both wrist (A P view) :- There is non- fusion of distal ulnar epiphysis on the both sides. There is non-fusion of the distal radial epiphysis on the both sides. In female, the distal ulnar epiphysis fuses at the age of 17 years. In female, the distal ulnar epiphysis fuses at the age of 17 years. In female the distal radial epiphysis fuses at the age of 16.5 years. X-ray Pelvis (AP View):- There is non-fusion of the epiphysis of the iliac crest on both sides. In female, the iliac creast epiphysis appeared at the age of 14 years (only the lateral component appeared) and fuses at the age of 17-19 years.
It is in my Opinion:- a board should be constituted with appropriated expertise for determination of age of the victim Prachi Pallawi Sahoo, I recommend to P.S. Gardanibagh.
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 28/46 Exhibit 5 To The Officer In charge Mahila Thana Gardani Bagh Patna.
Regarding the medical board report of victim PRACHI PALLAVI D/o Sri Priyadarshi Sahoo Flat No. - 101(1st floor) Shivam Vihar Apartment Anandpuri P.S. S.K. Puri Patna received from Patna Medical College Hospital Patna on 17.11.2021 It is a attested & Photo state copy received by letter No. 11877 dated 01.11.2021 of C/S Office Patna C.S. Patna Vide letter No. 10402 dated 22.09.2021 Finding & Opinion - On the basis of Physical, dental and radiological findings. The Medical Board is of the Opinion that the age of the above mentioned person is in between 11 and 12 Years ( Eleven Years and twelve year) Mahila Thana case No. 109/2021 Date 07.08.2021 U/S IPC 342/376 (AB) IPC & 4/6 POSCO Act. ER.
No. 3563/08/09/2021"
(Name and identity of the victim has been masked by this Court)
30. In the case of Krishna Kumar Malik vs. State of Haryana reported in (2011) 7 SCC 130, their Lordship of the Supreme Court while dealing with a case of rape in which medical evidence showed that her labia minora were healthy and had no mark of injury, hymen had old healed tear and the same was not red hot or tender and did not bleed on touching observed in paragraph '25' as under:-
"25. Needless to say the solitary evidence of the prosecutrix to bring home the charge of abduction and commission of rape by the appellant does not inspire confidence and is not of sterling quality. In our opinion, it is neither prudent nor safe to hold the appellant guilty of commission of the said offence..."
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 29/46 Delay in lodging of FIR and non-examination of material witnesses
31. The I.O. (PW-8) has deposed that she got information of the occurrence over telephone from the Officer Incharge of Shrikrishnapuri Police Station at about 16:20 hours. This telephonic information was not recorded by the I.O. for purpose of lodging of the FIR. She has further stated that after the said information, she did not get any written information at the police station but she reached the place of occurrence after getting information with her bodyguard and ASI Usha Sinha. She had found the appellant in injured condition there. She had prepared the seizure list at 06:30 PM. The I.O. has further stated in paragraph '31' of her deposition that the information about the occurrence was received on 07.09.2021 at 20 Hrs. A formal FIR has been lodged in this case at 20 hours. On perusal of the seizure list (Exhibit "P-10") it transpires that a case number is mentioned in the seizure list but it was not possible to mention the case number when FIR itself was registered at 8:00 PM, therefore it is evident that seizure list has been prepared only after 8:00 PM. The two seizure list witnesses namely (1) Md. Imran and (2) Ajmat Hussain Khan have not been examined in this case. It is, therefore, Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 30/46 evident that the I.O. is extending the time of her reaching to the house of the victim. While the mother and father of the victim both have stated that the police reached immediately after PW-2 reached her flat, PW-2 claimed that after reaching home she had given call to Srikrishnapuri P.S. and Mahila Thana but the I.O. has stated that she got information about the occurrence from Incharge of the Shrikrishnapuri Police Station at 16:20 hours. The prosecution is completely silent on the point of delay in lodging of the First Information Report immediately after recording fardbeyan of the victim girl. The I.O. had not seized the mobile phone of the appellant, no seizure list has been prepared by her but according to the I.O., the family member of the victim had made available the mobile phone of the appellant and for obtaining his location, she had taken action but in paragraph '44' of her deposition, the I.O. has stated that she does not have the mobile location as per the CDR of the mobile phone of the appellant in the case diary and on the record.
No scientific evidence to prove presence of the appellant between 02:00-03:00 PM
32. This Court, therefore, finds that to prove the presence of the appellant in the house at the time of occurrence, the most scientific evidence which could have been brought on the Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 31/46 record has not been proved. On the other hand, the CCTV footage of Mahila Thana which is under possession and control of the prosecution has been withheld. Thus, it would give rise to an adverse inference in terms of Section 114(g) of the Evidence Act.
Section 114(g) reads as under:-
"That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
33. When the defence came with a stand that appellant was already taken to the police station at 10:00 AM and he was in Hazat of Thana at 11:30-11:30 AM, it was all the more necessary for the prosecution to produce the CCTV footage of Mahila Thana for the relevant period otherwise there is no reason why the statement of the defence witnesses be not given credence. As regards the weightage required to be given to the defence witness the Hon'ble Supreme court in the case of Adambhai Sulemanbhai Ajmeri vs. State of Gujarat reported in (2014) 7 SCC 716. Paragraph '219' and '220' reads as under:-
219. It has been held by this Court in a catena of cases that while examining the witnesses on record, equal weightage shall be given to the defence witnesses as that of the prosecution witnesses. In Munshi Prasad v. State of Bihar 35 this Court held as under: (SCC p. 356, para 3) "3. ... Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be
35. (2002) 1 SCC 351 : 2002 SCC (Cri) 175 Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 32/46 termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution -- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses."
220. Further, it has been held in State of Haryana v. Ram Singh75 as under: (SCC p. 439, para 19) "19. ... Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one -- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court.
Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself--what more is expected of the defence case: a doubt or a certainty--
jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by
75. (2002) 2 SCC 426 : 2002 SCC (Cri) 350 Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 33/46 reason thereof is far too strict and rigid a requirement for the defence to meet -- it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence -- this itself is a circumstance, which cannot but be termed to be suspicious in nature."
34. In paragraph '57' of her deposition, the I.O. has stated that in course of investigation, she had not recorded in the statement of the appellant that at what time, he comes to the residence of the victim and at what time, he goes back to his house. She had not obtained the CCTV footage of the Apartment during investigation. She had not recorded in the case diary that button of the cloth of the victim was torn or the cloth was torn. No witness had told her about the tearing of button or cloth of the victim. No witness told her that the 'dabba' of salt was there in the room of the victim girl or not. The defence suggested the I.O. that because the mother of the victim is a Senior Police Officer, therefore, under pressure she had lodged a false case and without completing the investigation, in haste she filed the chargesheet. The I.O. denied the suggestion. The I.O. was further suggested that the mother of the victim was forcibly taking work from the appellant which he did not want to do and it was the case of the defence that at the time of occurrence, the duty of the appellant was not there in the house of the mother of the victim. This Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 34/46 suggestion was denied by the I.O. While the defence has brought the wife, son and daughter of the appellant to prove the presence of the appellant in Hazat of the Police Station at 11:30 AM on 07.09.2021, the prosecution has not brought any independent evidence to prove that the appellant's duty time in the residence of PW-2 was during the time of occurrence or that he was not in the Hazat of Mahila Thana at 11:00-11:30 AM.
35. This Court further finds that when PW-2 who is the mother of the victim came to depose, she did not disclose the duty time of the appellant at her residence. She has stated that the appellant has been deputed at her residence from BMP-5 for last 6- 7 years. No proof of his deputation at her residence for cooking work and the duty hours has been brought on record. It is, therefore, evident that the appellant is an employee of BMP-5. No reason has been shown by prosecution for his remaining on deputation at the residence of DIG (Wireless). The appellant was posted as "JAL WAHAK" in BMP-5 as per the statement of PW-2 (paragraph '14'). Therefore, this Court finds that the defence case that the appellant did not want to do the residential work at the residence of PW-2 and he was looking for his release but he was not being allowed to leave the residential work at the house of PW- 2 inspires confidence. PW-2 has stated in her cross-examination Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 35/46 that the appellant had mobile and his mobile number is saved in her mobile phone. She has also stated that the appellant was arrested by police from her house. She has denied the suggestion of the defence that police had done any marpit with the appellant. The denial of PW-2 that police had any marpit with the appellant only proves that the appellant was assaulted and marpit was done in the house of PW-2 by the inmates of the house whosoever were there as a result of which when the I.O. reached the house of PW- 2, she found the appellant in injured condition. PW-2 was suggested by the defence that the appellant was looking to get relieved from her residence and only to put pressure upon him, this case was lodged against him. She denied this suggestion.
36. The statement of appellant recorded under Section 313 CrPC reads as under:-
"iz"u% D;k vkius vfHk;kstu dk lk{; lquk gS \ mÙkj%& th gk A iz"u% vkids fo:} lk{; gS fd vki ihfM+rk ds ?kj ij [kkuk cukus dk dke djrs Fks A vkius fnukad 07-09-2021 dks le; djhc 02%20 cts vijkg~u es ihfM+rk tc vius dejs fcNkou ij i<+ jgh Fkh] vki mlds fcNkou ij cSB x;s vkSj ihfM+rk tc cksyh dh vki fcNkou ij D;ksa cSBs gSa rc vkius dejs dk njoktk vUnj ls can dj fn;k] ihfM+rk ds iSj nckus yxs vkSj ihfM+rk tc cksyh dh esjk iSj D;ksa nck jgs gks rc vkius mldks :i;k nsus yxs vkSj dgs fd eEeh dks er crkuk fQj vkius ihfM+rk ds Vh"kVZ ds vUnj gkFk Mky dj mlds "kjhj dks Nqus yxs rFkk ihfM+rk ds iSUVh ds vUnj gkFk Mkydj ihfM+rk ds is"kkc ds jkLrs esa viuh vaxqyh ?kqlkus yxs A ihfM+rk vkidk gkFk gVk jgh Fkh fQj Hkh vki tcjnLrh viuk gkFk ihfM+rk ds is"kkc ds jkLrs esa ?kqlk jgs Fks A Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 36/46 vkids fo:} ;g Hkh lk{; gS fd bl ?kVuk ls dqN fnu iwoZ ihfM+rk tc vius fdpu esa U;wMYl cuk jgh Fkh rks vki ckj ckj ihfM+rk ds "kjhj ls viuk "kjhj lVk jgs Fks vkSj tc ihfM+rk tc cksyh rc vkius dgk fd eSa U;wMYl ns[k jgk gw¡ A"
mÙkj%& ,slh ckr ugha gS] eq>s tcjnLrh ncko Mkydj ihfM+rk dh ek¡ us vius futh vkokl ij ?kj dk [kkuk cukokrh Fkh A ihfM+rk dh ek¡ ,oa ihfM+rk nksuksa eq>s xkyh nsrh Fkh A eSa ihfM+rk ds ?kj ij dke ugha djuk pkgrk Fkk A fnukad 07-09-2021 dks ukS cts lqcg esa ysV ls dke djus x;k Fkk] ihfM+rk dh ek¡ eq>s xkyh nsus yxh vkSj cksyh dh eq>s ,d t:jh ehVhax esa tkuk gS vHkh rd rqeus uk"rk rS;kj ugha fd;k gS A eSaus ihfM+rk dh ek¡ ls cksyk fd eSa vkids ?kj esa [kkuk ugha cukm¡xk A rc bejku yksgs dh jM ls eq>s cqjh rjg ls ekjs ftlls esjk flj QV x;k vkSj [kqu fudyus yxk A eSa Fkkuk esa dsl djus tk jgk Fkk rc ihfM+rk dh ek¡ vkSj bejku us eq>s ,d dejs esa cUn dj fn;k vkSj >qBk dsl djds eq>s tsy fHktok fn;s A eSa funksZ'k gw¡ A"
37. It is evident that the appellant has said about the time of occurrence, reason behind the occurrence and the injuries caused to him. The tower location of the prosecution witnesses who have been examined or left to be examined and that of the appellant would have scientifically proved the presence of these persons at the place of occurrence at the given time but unfortunately all such evidences which could have indicated the time of arrest of the appellant, his medical examination and confinement in Hazat of the police station has not been brought on record in course of trial.
38. From the evidence of PW-2, this Court finds that the appellant was an employee of BMP-5 as "JAL WAHAK". PW-2 claims that the appellant was deputed at her house but it is not believable because a "JAL WAHAK" in BMP-5 cannot be put on Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 37/46 deputation in the residential house of DIG (Wireless), the defence case that the appellant has been falsely implicated carries much weight and cannot be thrown out easily. PW-2 and PW-3 both have stated that their daughter ('X') had not told them that earlier, the appellant had committed any wrong act/behaviour with her. In paragraph '35', PW-2 has stated that prior to the occurrence, there was no complaint with regard to the behaviour of the appellant in her knowledge. Similarly, her husband (PW-3) has deposed in paragraph '30' of his deposition that his daughter had not told him about any misbehaviour by the appellant with her prior to the occurrence.
39. This Court reiterates that the appellant was arrested in injured condition from the flat of PW-2. He was taken to hospital for medical examination but neither the arrest memo nor the injury report of the appellant has been brought on record by the prosecution. In the facts of this case, the prosecution is not coming clean and is suppressing the injuries caused to the appellant. These two documents would have shown the time of arrest and the time of his medical examination in the hospital. Non-production of these documents would amount to suppression of material information. These two documents would have revealed the truth as to whether the arrest was made after the alleged occurrence Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 38/46 which as per prosecution took place between 02:00-03:00 PM or the arrest was made after the alleged occurrence which according to the appellant took place in morning when he reached the flat of PW-2 at 09:00 AM.
40. As regards the onus of proof lying upon the accused and the presumption of innocence in a criminal case, the Hon'ble Supreme Court in the case Ramanand vs. State of U.P. reported in AIR 2022 (SC) 5273 has held in paragraph '99' and '101' as under:-
"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 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 Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 39/46 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 a presumption that the defendant is innocent therefore requires the State to prove the defendant's guilt."
41. This Court has already recorded that the prosecution in this case suppressed injury report of the appellant. It is own statement of the I.O. that when she reached the house of PW-2, she found the appellant in injured condition. What would be the impact of non-explanation of injury may be judged keeping in view the opinion of Hon'ble Supreme Court in paragraph '107' of the judgment in the case of Ramanand (supra) as under:-
"107. We are of the view that both the sides are wrong in their own way. The settled law is that if there are serious Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 40/46 injuries or grievous injuries found on the body of the accused then the prosecution owes a duty to explain such injuries and the failure on the part of the prosecution to explain may point towards the innocence of the accused. At the same time, the well-settled law is that if the injuries are superfluous or minor in nature then the prosecution need not explain such injuries. In the case on hand, the appellant-accused has offered some explanation which could be said to be compatible with the defence he has put forward. As explained earlier, the accused has to establish his defence on preponderance of probability and not beyond reasonable doubt. The accused in his statement recorded under Section 313 CrPC has said that he suffered the head injuries as one of the assailants out of the four had hit him on his head with the butt of the gun. PW 9 Dr Ankit Kumar Singh in his evidence has said that Injuries 1, 2 and 3, respectively, could have been caused by the butt of the gun. PW 9 Dr Ankit Kumar Singh has not said that the injuries suffered by the appellant-accused were self- inflicted injuries."
42. On complete reading of the evidences available on the record, this Court is of the considered opinion that the defence has been able to create a doubt with respect to the time of occurrence as mentioned in the FIR and presence of the appellant in the house of the victim between 02:00-03:00 PM on 07.09.2021. The victim in this case cannot be put in the category of a sterling witness. Her statement that the appellant kept continuing with the penetration of finger in her private part for half an hour, still during physical examination of her private part, Doctor (PW-5) did not find any sign of scratch of nail, swelling, redness or tenderness Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 41/46 on any of the area of the private part of the victim and even as the appellant was arrested on the same day, his medical examination report has not been produced by the prosecution would only give rise to an inference that the medical examination of the appellant did not find presence of any foreign body or substance onto his finger which could have been easily found and matched through the scientific test by the FSL. Since the prosecutrix cannot be put in the category of a sterling witness and the evidence of the Doctor completely rules out the prosecution case and further the prosecution has suppressed some vital materials such as the injury/medical examination report of the appellant, the CCTV footage of the police station and no explanation has been given by the prosecution about the injury noticed by the I.O. on the body of the appellant and the FSL report showing blood on his pant which had fallen due to injury caused to him, in these kind of evidences present on the record, it would not be safe to convict the appellant believing the testimony of the victim girl as sacrosanct.
43. We are conscious of the fact that it is a case under the POCSO Act 2012. Section 29 of the POCSO Act reads as under:-
29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 42/46 committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
44. In the 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. The views expressed by the Hon'ble Calcutta High Court in the case of Subrata Biswas and Another versus State reported in 2019 SCC Online Cal 1815, and the views expressed by Hon'ble Kerala High Court in the case of Joy versus State of Kerala reported in (2019) 1 KLT 935 have been relied upon by this Court in the case of Heera Das Vs. State of Bihar & Anr. reported in 2025 (2) BLJ 517. Paragraph '33', '34' and '35' of the judgment in the case of Heera Das (supra) are being reproduced hereunder:-
"33. In the case of Veerpal @ Titu (supra), the Hon'ble Delhi High Court has discussed the kind of presumption provided under Section 29 of the POCSO Act. Paragraph '20' of the judgment in the case of Veerpal @ Titu (supra) is quoted hereunder for a ready reference:-
"20. Section 29 of POCSO Act provides that Court shall presume that the accused has committed the offence for which he is charged with, until contrary is proved. However, the presumption would operate only when the prosecution proves the foundational facts in the context of allegation against the accused beyond reasonable doubt. After the prosecution establishes the foundational facts, the presumption raised against the accused can be rebutted by discrediting the prosecution witnesses through cross- examination and demonstrating the gaps in prosecution version or improbability of the incident Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 43/46 or lead defence evidence in order to rebut the presumption by way of preponderance of probability. Keeping the same in perspective, the prosecution in the first instance is required to establish the foundational fact that the incident, as alleged, was conveyed by the victim to her dadi (grandmother) on 16.09.2016 (i.e. the day of lodging of FIR). However, the evidence and statements during investigation, as discussed above, reflect different dates of alleged communication of the incident, which throws a doubt on the prosecution version. In view of above, in absence of foundational fact not being proved beyond reasonable doubt, the reliance placed upon presumption under Section 29 & 30 of POCSO Act by learned Trial Court to base conviction, appears to be misplaced. Taking in the alternative, even if the foundational facts are considered to be proved, to make the presumption under Section 29 of POCSO Act, the same stands discredited by way of discrepancies brought in cross-examination of the victim, PW3 and witnesses examined in defence. The presumption of guilt under Section 29 & 30 of POCSO Act taken by the learned Trial Court could not be an edifice to convict the appellant since testimony of victim is unreliable and there are serious flaws and gaps in the prosecution case. As a wrongful acquittal shakes the confidence of people, a wrongful conviction is far worse. A child abuser in the eventuality of false implication even continues to suffer a blot of social stigma which is much more painful than the rigours of a trial and imprisonment. Prosecution case is marred by inadequacies and contradictions which strike to the root of prosecution case and, as such, prosecution has failed to bring home the charge against the accused beyond reasonable doubt.
For the foregoing reasons, appeal is allowed and the judgment and order on sentence passed by the learned Trial Court is set aside. Appellant is acquitted and be released forthwith, if not required in any other case. Pending applications, if any, also stand disposed of. A copy of this judgment be forwarded to the Jail Superintendent and the learned Trial Court for information and compliance. A copy be also provided to the appellant, free of cost."
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 44/46
34. Similarly, in the case of Subrata Biswas (supra), the Hon'ble Division Bench of Calcutta High Court has discussed the scope of statutory presumption under Section 29 of the POCSO Act, 2012. Paragraphs '22' and '23' of the judgment in the case of Subrata Biswas (supra) are quoted hereunder for a ready reference:-
"22. The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the contrary. The word "is prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that were so then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours thereof by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities) the onus shifts upon the accused to prove the contrary. Judging the evidence in the present case from that perspective, I am constrained to hold that the version of the victim (PW-
1) and her mother (PW-2) with regard to twin incidents of 24th March, 2016 and 18th April, 2016 if taken as whole, do not inspire confidence and runs contrary to normal human conduct in the backdrop of the broad probabilities of the present case.
23. Hence, I am of the opinion that the evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 45/46 particularly the inexplicable conduct of the victim herself. One part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, I am of the opinion that the factual matrix of the case does not call for invocation of the aforesaid statutory presumption so as to convict the appellant on the charges levelled against him."
35. The same views have been expressed by the Hon'ble Kerala High Court in the case of Joy versus 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 the present case, the foundational facts such as that the victim was taken away by the appellant at 11:00 am by alluring her after giving a biscuit and then the rape was committed inside the house has not been established. The prosecution story as discussed in the written report giving rise to the present FIR and then the evidence of PW- 7 are materially inconsistent and this Court has discussed hereinabove why the evidence of PW-7 would not inspire confidence."
45. In the present case, we are of the considered opinion that the prosecution has not proved the foundational facts through cogent evidence. The defence has been able to prove its case by preponderance of probability.
46. The learned trial court seems to have erred in appreciation of the evidences on the record. The appellant is entitled for acquittal giving him benefit of doubt.
Patna High Court CR. APP (DB) No.406 of 2022 dt.23-06-2025 46/46
47. In result, the impugned judgment and the order of sentence are set aside. The appellant shall be released forthwith, if not wanted in any other case.
48. This appeal is allowed.
49. Let a copy of this judgment together with the trial courts' record be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J) (Ashok Kumar Pandey, J) Rishi/-
AFR/NAFR CAV DATE Uploading Date 27.06.2025 Transmission Date 27.06.2025