Patna High Court
Bablu Singh @ Babloo Chaudhary @ Randhir … vs The State Of Bihar on 25 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.1251 of 2024
Arising Out of PS. Case No.-1247 Year-2022 Thana- KHAGARIA District- Khagaria
======================================================
Bablu Singh @ Babloo Chaudhary @ Randhir Kumar Chaudhary @ Randhir
Kumar, Son of Late Rameshwar Singh @ Rameshwar Chaudhary @ Baudhu
Singh, Resident of Village-Hajipur Dhobi Tola, Patel Nagar, Ward No.19,
Police Station-Khagaria, District-Khagaria.
... ... Appellant
Versus
1. The State of Bihar
2. X/1 C/o Sri Vikky Kumar, R/O Vill.- Hajpur Dhobi Tola, Patel Nagar, Ward
no. 19, P.S.- Khagaria, Dist.- Khagaria
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Md. Imteyaz Ahmad, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Rituraj Raman, Advocate
Mr. Mohit Meet, Advocate
For the State : Mr. Abhimanyu Sharma, Addl.PP
For the Informant : Mr. Siddhartha Prasad, Advocate
Mr. Om Prakash Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 25-06-2025
This appeal has been preferred for setting aside the
judgment of conviction dated 17.08.2024 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
03.09.2024
(hereinafter referred to as the ‘impugned order’)
passed by learned Additional Sessions Judge-VI-cum-Exclusive
Special Judge, POCSO Act, Khagaria (hereinafter referred to as
the ‘learned trial court’) in Special POCSO Case No. 08 of 2023,
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GR Case No. 33 of 2022 arising out of Khagaria P.S. Case No.
1247 of 2022.
2. By the impugned judgment, the appellant has been
convicted for the offences punishable under Section 376AB of the
Indian Penal Code (in short ‘IPC‘) and under Section 5(m)/6 of the
Protection of Children from Sexual Offences Act (in short
‘POCSO Act‘). By the impugned order, the appellant has been
ordered to undergo rigorous imprisonment for twenty years with a
fine of Rs.50,000/- under Section 6 of the POCSO Act and in
default of payment of fine, he has to further undergo simple
imprisonment for six months.
Prosecution Case
3. The prosecution case is based on the written
application of the mother of the victim (PW-2). In her written
application, she has alleged that on 22.11.2022 at about 07:00 PM
her daughter aged three years went to purchase biscuit from
neighbourhood shop. She has alleged that the appellant allured her
and with an intention to rape inserted finger in the private part of
her daughter. She has alleged that her daughter came crying in
injured condition and told about the incident. She has further
alleged that on removing pant of her daughter, she saw bleeding.
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When she went to confront him then the father and brothers of the
appellant started abusing and assaulting them.
4. On the basis of this written application, Khagaria P.S.
Case No. 1247 of 2022 dated 22.11.2022 was registered under
Sections 376, 323, 506/34 IPC and Section 4 of the POCSO Act.
After investigation, police submitted chargesheet bearing No. 01
of 2023 dated 19.01.2023 against this appellant under Section 376
IPC and Section 6 of the POCSO Act. On the basis of this
chargesheet, learned trial court, vide his order dated 04.02.2023
took cognizance of the offences under Section 376 IPC and
Section 4 of the POCSO Act. Charges were read over and
explained to the appellant in Hindi to which he pleaded not guilty
and claimed to be tried. Accordingly, vide order dated 13.02.2023,
charges were framed under Section 376 IPC and Section 4 of the
POCSO Act.
5. In course of trial, the prosecution examined as many
as ten witnesses and exhibited several documents to prove the
prosecution case. The Defence also examined five witnesses and
produced two exhibits. The names of the prosecution witnesses,
Defence witnesses and the exhibits produced on behalf of the
prosecution and the defence are being shown hereunder in tabular
form:-
Patna High Court CR. APP (DB) No.1251 of 2024 dt.25-06-2025
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PW-1 X/2 (victim’s father)
PW-2 X/1 (victim’s mother)
PW-3 Dr. Shashibala
PW-4 Sudha Kumari
PW-5 Ms. Uma Kumari
PW-6 Rajesh Kumar @ Fantus
PW-7 Jitendra Kumar Chaudhary
PW-8 X (victim)
PW-9 Dr. Balban Kumar
PW-10 Dr. Vidyanand SinghList of Defence Witnesses
DW-1 Mukesh Kumar Mohit
DW-2 Rajesh Kumar
DW-3 Kumar Rajan
DW-4 Manish Kumar
DW-5 Dhirendra Kumar ChaudharyList of Exhibits (Prosecution)
Exhibit-1 Identification of signature of informant-
cum-PW-2 on written application
Exhibit-2 Identification of signature of informant-
cum-PW-2 on Section 164 CrPC
statement
Exhibit-3, Identification of Dr. Shashibala’s
3/1 handwriting and signature on original and
supplementary investigation report
Exhibit- Identification of Dr. Shashibala’s
3/2 handwriting and signature on age
verification report of victim
Exhibit-4 Identification of handwriting and
signature of I.O. on charge-sheet
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SHO on Formal FIR
Exhibit- Registration and endorsement on the
5/1 written application. Identification of the
handwriting and signature of the then
SHO.
Exhibit-6 Identification of statement under section
164 CrPC recorded in the handwriting and
signature of Judicial Magistrate
Exhibit-7, Identification of signature of doctors on
7/1, 7/2 the Medical Board’s investigation report
Exhibit-8 Identification of signature of Medical
Officer Vidyanand Singh as witness on
the investigation report
Exhibit-9 FSL report of Patna Forensic Science
Laboratory (in total one fard)
Exhibit- FSL report of Bhagalpur Forensic Science
9/1 Laboratory (in total four fard)
Exhibit- Production-cum-seizure list dated
10, 10/1 22.11.2022 in the handwriting and
signature of I.O.
List of Defence Exhibits
Exhibit-A Original copy of notice issued in M.
No. 503/11 by SDM, Khagaria to
Dhirendra Kumar Chaudhary
Exhibit-B Original copy of original kevala
document no. 8050
Findings of the Learned Trial Court
6. Learned trial court after analysing the evidence
available on record firstly proceeded to consider as to whether the
victim is in the category of “child” or not? Learned trial court
found that according to definition provided in section 2(d) of
POCSO Act, “child” means any person below the age of eighteen
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years. In this case no documentary evidence has been produced
regarding the age of the victim. According to learned trial court on
the basis of appearance she seems to be child of being tender age,
in other words she is in category of innocent child. During trial
the mother of the victim also stated about the age of the victim and
the evidence of PW-3 Dr. Shashibala, who was the member of
Medical board which has reported that the age of victim is
between 3-5 years. Therefore, learned trial court declared the
victim is “child” under the definitions given under POCSO Act.
7. On the point of identification of accused learned trial
court found that the accused has been also identified in open court
by the victim herself.
8. Regarding delay in lodgement of FIR learned trial
court found that the date of occurrence is 22.11.2022 at 07:00PM,
and it has been reported to police station on 22.11.2022 at
08:20PM, hence, learned trial court found that the delay of one
hour in reporting of offence under POCSO Act is general and
normal.
9. Regarding the place of occurrence, date and manner
of offence learned trial court took the evidence of the informant
who deposed that the victim ‘X’ on 22.11.2022 at 07:00 PM went
to the shop of accused for purchasing biscuit, where the accused
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has committed sexual offence with victim. Learned trial court on
the evaluation of evidence found that the place of occurrence is the
Kirana shop of the accused which was found to be proved by the
facts and map of place of occurrence.
10. Regarding presumption and mens rea learned trial
court opined that the offences under the POCSO act are to be
presumed under section 29 of the act and the learned courts have
to presume about the commission of offence and the burden shifts
to accused to disprove it once the facts of the case are established.
Learned trial court found that in this case under trial the accused is
charged for offence of penetrative sexual offence with 3 years
innocent girl child by inserting his finger into the private part of
victim due to which blood came out, on the basis of the materials
on records and evidence presented during the trial court has to
presume. To prove this charge learned trial court has found that the
prosecution has produced three important witnesses, PW-1 father
of victim, PW-2 mother of victim, and PW-8 who is victim herself.
There is no major contradiction in the statements of informant
(PW-2) recorded under Section 164 CrPC and statement recorded
on oath in trial court, she has reiterated her statement. The PW-1,
father also puts the same impression, he has also mentioned that
the accused had committed wrong 2-3 times earlier with his
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daughter, which he ignored, in his cross examination the defence
has asked questions regarding the land dispute, which was partly
accepted and partly ignored, however, he withstood on her
statement regarding the commission by accused. On evaluation of
evidences of PW-1, 2 and 8, learned trial court found that the
victim went to shop of the accused and in that course the accused
has committed the offence.
11. Learned trial court went to examine us to what extent
the Victim X, who is in the category of child witness, has
supported this case. She has been examined as PW-8 on
03.06.2023. Before recording her examination she was subjected
to vior-dire test by learned trial court. During examination-in-chief
she stated that the accused has inserted his hand, his finger, on
asking where it was done, she answers in shop, on asking why she
went she answered, for taking biscuit, on asking about the crowd
in shop she replied that there was no crowd. She was unable to
answer few questions. Factually, its clear that the accused has
committed this offence with ill intention.
12. Regarding the ocular evidence supported by medical
evidence, learned trial court has found that the informant in written
application for lodgement of FIR mentioned about oozing of blood
from private part of her daughter, she was taken to hospital by
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Police officials where her treatment has been done, PW-3 Medical
officer in her examination in chief has deposed that she found
“vulva, libia majora and libia minora -red, tenderness and abraded.
Clitoris-red swollen and tenderness. Hymen- intact but reddish and
tender. Bleeding from vagina- present” which was restated by her
in statement in court.
13. On point of corroboration of testimonies of
witnesses, learned trial court has mentioned that, it is the judicial
opinion that in the case of rape, contradiction is not a matter of law
but a guideline of prudence. The statement of victim is very
important as long as there is no essential reason for doubting it. In
this case child witness was able to report it clearly to her mother in
first instance and she deposed in court the same as she reported
earlier as being of the tender age of 3 years, so there is no
requirement of corroboration by any independent witness or
evidence. Learned trial court opined that the defence has raised
argument on medical report about “Hymen-intact” but not
supported it by any strong argument. The principle of falsus in
uno- falsus in omnibus is not applicable in India so will not apply
to this case.
14. As regards the F.S.L Report, learned trial court has
found that the seized cloth of victim boars grayish stains which
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points about the physical connection between victim and accused,
and with the perusal of other material and evidences on record it
becomes evident from the medical evidence also.
15. On the basis of the materials on the record and
evaluation of evidences learned trial court found that the accused
on date of occurrence and place of occurrence has inserted his
finger in the private part of the victim ‘X’ due to which there was
penetration in the private part of victim.
16. Learned trial court on Defence evidence found that
the statement of accused was recorded under section 313 of CrPC,
on which he replied that he had listened all the statement of
witnesses to which he replied affirmatively and on commission of
alleged offence he denied specifically that, he had not committed,
he further replied that he has been falsely implicated due to land
dispute. Learned trial court examined the witnesses examined on
behalf of defence who are DW-1 to DW-5 who were not able to
support their statement, and they are under influence as being
friend, neighbour, tenant and own brother, they presented the facts
by twisting them, they are not able to prove any relevance with the
case and can’t be relied as credible witnesses. In other words
defence was not able to disprove any charges and failed.
Accordingly, the learned trial court held the appellant guilty for the
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offences under Section 376A, B of the IPC and Section 5d/6 of the
POCSO Act.
Submissions on behalf of the appellant
17. Mr. Ajay Kumar Thakur, learned counsel for the
appellant, has assailed the impugned judgment on various grounds.
It is submitted that the learned trial court could not appreciate the
evidences available on the record, particularly the sale deed
(Exhibit ‘B’) brought on record by the defence which would show
that two brothers namely Rajendra Ram and Upendra Ram of the
husband of the informant had executed a sale deed on 28.12.2010
with respect to six dhur and thirteen dhurki of land of Plot No.
183/184 under Khata No. 45 in favour of Shri Dhirendra Kumar
Chaudhary, son of Shri Rameshwar Chaudhary who is the brother
of the accused-appellant. This gave rise to a dispute between the
family of the informant and that of the family of the appellant. The
another document is a notice issued by the Sub-Divisional
Magistrate, Khagaria in the matter of a proceeding under section
107 of the CrPC vide Miscellaneous No. 503/2011 in which Shri
Dhirendra Kumar Chaudhary is the first party and the informant is
the second party in the matter of a proceeding under section 107
CrPC vide Miscellaneous Case No. 503(M)/2011. This notice was
also proved on behalf of the defence and the same has been
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marked Exhibit ‘A’. According to learned counsel for the
appellant, it is a case of false implication of the appellant because
of the said land dispute between the two families.
18. The another argument of learned counsel for the
appellant is that in this case, the definite prosecution case is that
after penetration of finger by the appellant in the private part of the
victim girl, she came in injured condition and weeping to her
mother and told the occurrence. At this stage, her mother claimed
to have opened the pant of the victim girl and found that blood was
oozing out. It is submitted that although Dr. Shashibala (PW-3),
the Medical Officer in Sadar Hospital, Khagaria has stated in the
injury report (Exhibit ‘3’) that vulva, labia majora and labia
minora, were found red, tenderness and abraded, clitoris – red,
swollen and tenderness and bleeding from vagina – present but
PW-3 found that the hymen of the victim girl was intact but
reddish and tender. Referring to paragraph ‘4’ to ‘6’ of her cross-
examination, learned counsel for the appellant submits that PW-3
has stated that the kind of injuries present may be caused due to
fall and she has further stated that if a finger is inserted in the
vagina of a girl aged between 3-5 years, her hymen would not
remain intact. It is, thus a submission that the case of the defence
as set out that the victim girl had sustained injury because of her
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fall in course of urination, her mother has said that victim had
fallen in course of urination, hence the defence gets support from
paragraph ‘4’ to ‘6’ of cross-examination of the doctor (PW-3).
19. Learned counsel submits that another doctor namely
Dr. Vidyanand Singh (PW-10) has deposed that he had examined
the victim girl (X) at 11:05 AM. He had removed the foreign body
button from left nostril. Foreign body was sealed in vial and was
given to the I.O. of this case. He has proved the injury report
issued by him (Exhibit ‘P-8’/PW-10). It is submitted that in
Exhibit ‘P-8’, PW-10 has stated in course of his cross-examination
that he had not found any injury on the body of the victim girl.
Learned counsel, therefore, submits that the informant has taken
advantage of the injury caused to the victim girl in concocting a
story of finger penetration in the private part of the victim girl and
this has been done in order to falsely implicate the appellant
because of the land dispute.
20. Learned counsel has further submitted that in this
case, the learned trial court has relied upon the evidence of the
victim girl (PW-8), however, in his submission PW-8 is a child
witness aged between 3-5 years, therefore, the learned Magistrate
should have examined the competence of the child witness to
speak the truth and the consequences of not speaking the truth. It is
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submitted that while recording the deposition of PW-8, the learned
Magistrate has stated in tentative words that she was
understanding few things. The learned Magistrate has not been
examined in this case. The victim girl while answering the
questions put to her by the defence through the learned Magistrate
was looking towards her mother and the fact that she was in the
custody of her mother since the lodgement of the case and till her
statement was being recorded in the trial court, she was tutored to
speak few things only. It is submitted that the I.O. (PW-4) has
stated that she had taken the victim girl and her mother to the court
for recording of their 164 CrPC statement, order dated 23.11.2022
passed by the learned Special Judge, POCSO Act, Khagaria would
show that the victim girl and her mother were sent for recording of
their statement to Ms. Uma Kumari, Judicial Magistrate, 1 st Class
but it appears that 164 CrPC statement of the victim girl was either
not recorded or has been suppressed by the prosecution.
21. Learned counsel submits that the white leggings
which the victim girl was wearing at the time of occurrence was
produced before the I.O. (PW-4) by the mother of the victim girl
on 22.11.2022 at 22:40 hours. The I.O. (PW-4) has deposed that
she had sealed the cloth of the victim in a packet, sealed the same
and the sealed cloth were marked ‘C’. It was sent to the Forensic
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Science Laboratory for medical examination, however, the FSL
report (Exhibit ‘8’) did not find any blood mark on the underwear
and the leggings of the victim girl. It is submitted that the definite
prosecution case that the victim girl was bleeding becomes
suspicious, on the face of the FSL report which did not find any
blood mark present on the undergarments and leggings of the
victim girl.
22. Learned counsel submits that the another FSL report
(Exhibit ‘9’) is with regard to the DNA test. The FSL report
exhibit marked ‘A’ (Source-Blood stained gauze swab cuttings),
taken from left hand of accused, blood sample of the accused in
EDTA vial (mark ‘D’), blood sample of the victim girl (X) in
EDTA vial (mark ‘E’) and blood sample of the victim girl (X) on
filter paper (mark ‘F’). The FSL report found that contribution in
the source of exhibit marked ‘A’ could not be established as the
DNA yield found refractory to amplification. Male DNA have
been obtained from the source of exhibit marked ‘D’ (Blood
source – accused) is a female DNA have been obtained from
source of exhibit marked ‘E’ and ‘F’ (Blood source – victim girl). It
is therefore submitted that both the FSL reports falsifies the
prosecution case.
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Submissions on behalf of the informant and the State
23. On the other hand, learned counsel for the informant
and learned Additional Public Prosecutor for the State have jointly
opposed the appeal. It is their common contention that the defence
documents which are Exhibit ‘A’ and Exhibit ‘B’ respectively are
of the year 2010-2011. The sale deed was obtained from the co-
sharers of the informant by one Dhirendra Kumar Chaudhary who
is brother of the accused – appellant. The appellant has no
beneficial interest in the said land and he is not party to either the
suit or to the proceeding under Section 107 CrPC. It is further
evident from the boundary of the disputed land that in the northern
side of the disputed land the name of husband of the informant has
been shown. In the southern boundary it is the name of
Rameshwar Chaudhary who is father of the purchaser Dhirendra
Kumar Chaudhary, in east there is one Nandan Chaudhary and in
west there is a road. The appellant is not in the boundary of the
disputed land. It is submitted that the place of occurrence is the
house-cum-shop of the appellant. I.O. (PW-4) has deposed with
regard to the boundary of the place of occurrence and it would be
evident from her deposition that in the north there is house of the
brother of the accused, in south there is a three storey house of
Sunil Chaudhary, in east there is parti land and in west there is
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PCC road whereafter there is parti land of Mahesh Chaudhary.
This appellant is the resident of Hajipur Dhobi Tola, Patel Nagar,
Ward No. 19 whereas Shri Dhirendra Kumar Chaudhary
(purchaser of land) is a resident of Ward No. 20. The submission is
that under these circumstances where the accused-appellant has no
beneficial interest in the disputed property and when he is not a
party to any of the proceedings with respect to the disputed land,
the plea of the defence that it is a false implication of the appellant
on account of land dispute cannot be believed. The defence has not
come out with any circumstance or immediate reason to show as to
why after 14-15 years of the alleged land dispute between the
brother of the accused and the informant, a false case would be
registered against this appellant.
24. Learned counsel further submits that the victim girl
in this case has been found competent by the learned Magistrate
and her testimony cannot be discarded only because she is a child
witness. The learned trial court has tested her understanding and
found her competent. Her looking towards her mother in course of
deposition is a natural conduct of the child. It is submitted that
only because her 164 CrPC statement is not on the record, the
evidence adduced by the victim girl would not lose its sanctity and
evidentiary value.
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25. Learned counsel further submits that so far as the
evidence of Dr. Shashibala (PW-3) is concerned, no contradiction
may be found between her examination-in-chief and the cross-
examination. PW-3 had examined the victim girl in Sadar
Hospital, Khagaria and she had found that the vulva, labia majora
and labia minora of the victim girl were red, tenderned and
abraded. The plea that the hymen remained intact is liable to be
rejected because many a times hymen may remain intact
depending upon its structure. In this connection, learned counsel
relies upon the texts of “Modi A Textbook of Medical
Jurisprudence and Toxicology” (Twenty Seventh Edition)
published by LexisNexis wherein in Chapter 32 it is stated that the
status of hymen is irrelevant because the hymen can be torn out
due to several reasons but an intact hymen does not rule out sexual
violence.
26. Learned counsel submits that the occurrence took
place on 22.11.2022 at around 7:00 PM, the FIR was lodged
immediately thereafter and the victim girl was examined in the
Sadar Hospital, Khagaria by doctor (PW-3). All this happened
within a reasonable time-frame, therefore, there would be no
chance of concoction of the prosecution story. According to him,
non-finding of blood on the leggings and the undergarments of the
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victim girl may not prove fatal to the prosecution and the learned
trial court has rightly held that the principle of Falsus in uno,
falsus in omnibus would not be applicable in India. The court has a
duty to separate the chaffs from the grain. In the present case, the
learned trial court has, therefore, rightly concluded that the
appellant is guilty of commission of the offence.
Consideration
27. Having heard learned counsel for the appellant,
learned counsel for the informant and learned Additional Public
Prosecutor for the State as also on perusal of the trial court
records, this Court finds that the prosecution has been able to lay
down the foundational facts to attract the presumption as
envisaged under Section 29 of the POCSO Act, 2012 (as amended
up to date). Section 29 reads 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.”
28. By judicial pronouncements, it has been held that to
attract the presumption under Section 29, the prosecution has to
prove the primary facts. In this case, the defence has not
questioned the age of the victim girl (X). The Medical Board
constituted by the Civil Surgeon, Khagaria examined the victim
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girl on 23.11.2022. The Medical Board found that she was
between 3-5 years. The report of the Medical Board has been
marked Exhibit ‘P/7’ through Dr. Balban Kumar (PW-9) who was
posted at Sadar Hospital, Khagaria as a Dental Surgeon and was a
member of the Medical Board. PW-9 has proved the signature of
Dr. Ravi Shankar and Dr. Shashibala (PW-3) is Exhibit ‘7/1’ and
Exhibit ‘7/2’ on the report.
29. The victim girl has been examined as PW-8. In
course of her deposition, she identified the appellant and affirmed
that he had penetrated his finger in her private part. The defence
put her certain questions through the learned trial court. She was
not suggested that she had not gone to the shop of the appellant
rather, defence asked certain questions such as – what was the day
on which she had gone to the shop of Bablu Chacha and how
many persons were present at the shop. There is no whisper at all
by the defence that the victim girl had not visited the shop of the
accused on 22.11.2022 during evening hour.
30. This Court further finds from the evidence on the
record that the victim girl came weeping to her mother and told her
about the occurrence whereafter her mother went to lodge the FIR.
FIR was lodged and the I.O. (PW-4) recorded her statement under
Section 161 CrPC in which she once again told about the
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occurrence. The I.O. (PW-4) has stated in her deposition that the
victim had supported the prosecution case that the occurrence was
committed in the shop of the accused Bablu Singh @ Bablu
Chaudhary.
In the opinion of this Court, the prosecution has well
established the primary facts so as to attract the presumption under
Section 29 of the POCSO Act.
31. Now coming to the defence case, at first instance it
is submitted that the case has been lodged against the accused –
appellant because of a land dispute in which family of the
appellant is involved. In this regard, this Court has perused Exhibit
‘A’ and Exhibit ‘B’ which are the two documents pertaining to the
land dispute brought by the defence. Exhibit ‘A’ is a notice issued
by the court of Sub-Divisional Officer, Khagaria in which
Dhirendra Kumar Chaudhary, son of Kameshwar Chaudhary is the
first party and the informant is the second party. This notice was
issued on 09.05.2011 and it speaks of a land dispute. Exhibit ‘B’ is
the sale deed dated 28.12.2010. By this sale deed, Dhirendra
Kumar Chaudhary had purchased six dhurs and thirteen dhurki of
land from Rajendra Ram and Upendra Ram who are said to be the
co-sharers of the informant. It is evident from the najri naksha
enclosed with the sale deed (Exhibit ‘B’) that neither the appellant
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nor his father is a witness on the sale deed and there is no mention
of the name of the appellant or his father in the boundary of the
purchased land. The purchaser of the land is a resident of Ward
No. 20. The description of the land as mentioned in the sale deed is
saying that the land is in Ward No. 20. The appellant is a resident
of Ward No. 19 and the boundary of the place of occurrence as
disclosed by the I.O. on the basis of the identification made by the
informant and the victim would show that the place of occurrence
is in Ward No. 19 which is residence-cum-shop of the appellant. It
is evident that this dispute is going on between the parties for last
fifteen years. There is no evidence on the record to show that this
appellant had any enmity with the prosecution side on account of
this land dispute. This Court, therefore, not find any cogent
evidence on the record to accept this defence of the appellant.
32. The another defence taken by the appellant based on
the medical evidence and the opinion of the two doctors namely
Dr. Shashibala (PW-3) and Dr. Vidyanand Singh (PW-10). PW-3
had examined the victim girl in the same night at 1:45 AM on
23.11.2022 in the labour room – Emergency at Sadar Hospital,
Khagaria. The injury report (Exhibit ‘3’) issued by PW-3 is as
under.
“I Examined Phuggi/Nishar Kumari C/o Bikki Kr.
belong to Patel Nagar ward No.- 19 Post Dist.- Khagaria
brought by ladies constable Puja kumari (N. 335) &
Patna High Court CR. APP (DB) No.1251 of 2024 dt.25-06-2025
23/32Anjali Kumari (N.- 341) in front of ANM Kumari
Anjana in labor Room emergency at Sadar Hospital
Khagaria at 1:45 A.M. on 23/11/2022.
O/E Temp. - 97.4 F/ 1.40 A.M.
GPE. Inj. T.T. 5. ml I.M., given
G.C.-Fair
Child is irritable & crying * Child cloth I did not get
handover to police
M.I. (i) Black mole present over lower lid of Lt. Eye.
(ii) Small cut mark present over outer canthus of Lt.
Eye.
General Examination Face – Normal, not injured.
Both Arms- Normal no Injury. Chest – No injury.
Back of chest – No injury.
Local Pubic hair & Axillary hair not develop. No
matted hair, no semen present around genitalia & vulva.
Perineum- Normal. No tear present. No bleeding
/discharge present over perineum area.
Vulva, Labia Majora & Labia minora- Red, tenderness
and abraded.
Clitoris – Red, swollen & tenderness.
Hymen- Intact but reddish & tenderness.
Bleeding from vagina ++
Vaginal swab taken & send to J.L.N.M.C.H. Bhagalpur
for microscopy examination.”
[The identity of the victim has
been masked by this Court.]
33. In her examination-in-chief, PW-3 has proved the
injury report (Exhibit ‘3’) and supplementary report of
microscopic examination of vaginal swab-spermatozoa not found
as Exhibit ‘3/1’. She has also proved her signature on the report of
the medical board and it has been marked Exhibit ‘3/2’ at her
instance. It is evident from Exhibit ‘3’ that the doctor had found
that vulva, labia majora and labia minora were red, there were
tenderness and those were abraded. Clitoris was found red, there
were tenderness and those were abraded. Clitoris was found red,
Patna High Court CR. APP (DB) No.1251 of 2024 dt.25-06-2025
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swollen and tenderness. Bleeding from vagina was present, the
hymen was reported intact but reddish and tender. Learned counsel
for the defence has heavily relied upon paragraph ‘4’, ‘5’ and ‘6’
of the deposition of PW-3 to submit that according to the doctor,
she had not found any injury on other part of body or the substance
of any other person on the body of the victim. The doctor has also
opined that if a finger is penetrated in the vagina of a girl child, her
hymen would not remain intact. She has also stated that the kind of
injuries suffered by the victim of this case may occur due to fall.
34. The defence has also relied upon the evidence of Dr.
Vidyanand Singh (PW-10) to submit that he had removed foreign
body button from left nostril of the victim on 23.11.2022 at 11:05
AM. He had not found any other injury on the body of the victim.
This doctor had proved the injury report of the victim as P-8/PW-
10. According to the defence, while lodging the case, the
informant did not disclose that how the button entered into the
nostril of the victim girl. It is pointed out that the informant while
making her statement under Section 164 CrPC disclosed this fact
that during examination in the hospital, in the morning one button
was removed from the nostril of her daughter. It is submitted that
PW-3 has noted in the injury report (Exhibit ‘3’) that child is
irritable & crying * child cloth I did not get cloth – hand over to
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police. It is submitted that the doctor found the child in irritable
and crying condition which may happen because of the foreign
body like button in her nostril and in this connection, the statement
of PW-10 is that if a child of three years would have button inside
her nose then she would be in trouble. This Court is, however, not
impressed with the defence on this point too. The victim is a three
years old girl child. She was examined by PW-3 within a short
period from the time of occurrence. She has deposed that vulva,
labia majora and labia minora were found red, in tendered
condition and abraded. The clitoris was also red, swollen and
tendered. The plea of the defence that such injuries may be caused
due to fall is not proved from the evidence available on the record
in the present case. As regards the condition of hymen, Modi A
Textbook of Medical Jurisprudence and Toxicology” (Twenty
Seventh Edition) clearly provides in paragraph ’18’ inter alia reads
as under:-
“….. The status of hymen is irrelevant because the hymen
can be torn due to several reasons such as cycling, riding or
masturbation among other things. An intact hymen does
not rule out sexual violence, and a torn hymen does not
prove previous sexual intercourse. Hymen should therefore
be treated like any other part of the genitals while
documenting examination findings in cases of sexual
violence. Only those that are relevant to the episode of
assault (findings such as fresh tears, bleeding, oedema,
etc.) are to be documented….”
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In paragraph ‘32.15’in chapter 32 the textbook reads as under:
“… There is a distinction between vulval penetration and
vaginal penetration; and vulval penetration, with or without
violence, is as much rape as vaginal penetration. It is not
necessary that hymen be ruptured in every case. More
importantly, this examination has become increasingly
irrelevant in the modern day approach to determination of
sexual violence and the guidelines issued by the Ministry
of Health and Family Welfare, which have suggested
giving up medical reports on the status of hymen ruptures.”
35. It is well settled in law that insertion of any object or
part of the body, even a finger or tongue into vagina, urethra or
anus would come within the meaning of rape as defined under
Section 375 IPC (now section 63 of Bharatiya Nyaya Sanhita,
2023). Vagina includes labia majora and mere a surface touch
would be sufficient to bring it within the meaning of rape. It is
evident that the local examination of the genitals part of the victim
girl (PW-3) had examined the victim, inspected vulva, labia
majora and labia minora for any sign of recent injury such as
bleeding, tear, bruises, abrasions, swelling. PW-3 found redness,
tenderness and swelling suggesting that the victim was subjected
to penetration into her vagina. Even her hymen was found reddish
and tendered though it was intact.
36. The injury report (Exhibit ‘3’) and the evidence of
doctor (PW-3) read together with the evidence of the victim girl
(PW-3) would prove the prosecution case beyond all reasonable
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doubts and the defence of the appellant that the victim girl had
sustained injuries in her private parts because of fall in course of
urination in her house is liable to be rejected.
37. The defence has taken a plea that the victim girl is a
child witness and her competence to depose has not been duly
examined by the learned trial court. We have gone through the
evidence of PW-8. When she came to depose the learned Presiding
Officer asked her few questions which she answered and the trial
court being satisfied with her understanding found her fit to
depose. In her examination-in-chief, she has clearly stated that the
appellant had penetrated his finger. She has stated about the place
of occurrence being the shop of the appellant. She has stated that
the occurrence took place in the evening when she had gone to
bring biscuit. She has stated that it was summer season and she
was alone. When she was asked that whether the appellant had
beaten her, she said ‘No’. This Court is satisfied that the victim girl
(PW-8) has rightly been held competent to depose by the learned
trial court and no adverse opinion may be found on this issue. The
learned trial court has rightly held that the evidence of the victim is
very important and according to Section 134 of the Indian
Evidence Act, it is the quality of evidence which is to be seen and
not the quantity of evidence. The learned trial court has rightly
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held that the principle of Falsus in uno, falsus in omnibus is not
applicable in India. The view taken by the learned trial court that
in order to settle the score on account of an old inimical
relationship, the informant could have herself placed as the victim
but it cannot be believed that she would make her innocent child
girl a victim is a correct reasoning. In this connection, the learned
trial court has relied upon the judgment of the Hon’ble Supreme
Court in the case of State of U.P. vs. Chhoteylal reported in AIR
2011 SC 697. The relevant part of the judgment are quoted
hereunder for a ready reference:-
“….. it can be said that rarely will a girl or a woman in
India make false allegations of sexual assault on
account of any such factor as has been just enlisted.
The statement is generally true in the context of the
urban as also rural society. It is also by and large true
in the context of the sophisticated, not so sophisticated,
and unsophisticated society. Only very rarely can one
conceivably come across an exception or two and that
too possibly from amongst the urban elites.”
38. At this stage, this Court would also rely upon the
judgment of the Hon’ble Supreme Court in case of O.M. Baby
(Dead) by Legal Representative vs. State of Kerala reported in
(2012) 11 SCC 362 for purpose of appreciation of evidence in case
of rape of a minor. In paragraph ’18’ of the judgment, the Hon’ble
Supreme Court has observed as under:-
“We would further like to observe that while appreciating
the evidence of the prosecutrix, the court must keep in
mind that in the context of the values prevailing in the
country, particularly in rural India, it would be unusual for
Patna High Court CR. APP (DB) No.1251 of 2024 dt.25-06-2025
29/32a woman to come up with a false story of being a victim of
sexual assault so as to implicate an innocent person. Such a
view has been expressed by the judgment of this Court in
State of Punjab vs. Gurmit Singh 6 and has found reiteration
in Rajinder vs. State of H.P.7“
39. The Hon’ble Supreme Court has further held that in
the absence of corroboration, the testimony of the victim cannot be
ignored, unless the inconsistency or contradictions are sufficiently
serious to warrant such a course of action. It is well settled that the
prosecutrix of a sex offence is a victim of the crime. She is
undoubtedly a competent witness under section 118 of the Evidence
Act and her evidence must receive the same weight as is attached to
the injured in case of physical violence. In the kind of some
evidences present on the record, this Court finds no reason to
discard the evidence of the victim girl, her mother and the doctor.
40. The defence has examined five witnesses. Mukesh
Kumar Mohit (DW-1) is a tenant in the house of the appellant who
has stated that he was in the house on 22.11.2022 at 7:00 PM. He is
not aware whether any quarrel had taken place at that time at the
shop of the appellant. He had not heard about any wrong act
committed by the appellant with the victim. He has stated that there
was a land dispute between the brother of the appellant and Vicky.
In paragraph ‘7’ of his cross-examination, he has stated that he is
not aware that the appellant had put his finger in the private part of
6. (1996) 2 SCC 384 : 1996 SCC (Cri) 316
7. (2009) 16 SCC 69 : (2010) 2 SCC (Cri) 156
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the victim and in that connection, the appellant was arrested. It is
evident from his deposition that he is a tenant of the appellant and
is not aware as to the facts and circumstances of the case.
41. Rajesh Kumar (DW-2) works as a Medical
Representative and he has also shown his unawareness about the
occurrence which took place on 22.11.2022 between 7-7:30 PM.
Kumar Rajan (DW-3) has stated that he had not seen the victim girl
between 7-7:30 PM at the shop of Bablu (the appellant). He has
stated that there is a title suit going on between Bablu and Vicky but
this Court finds that this statement of DW-3 is not correct inasmuch
as this appellant is not a party to any title suit or any other
proceeding.
42. DW-3 has also stated that he is not aware that in
between 7-7:30 PM, the victim girl had gone to the shop of the
appellant where the appellant had put his finger in her private part
whereafter police had arrested him.
43. Manish Kumar (DW-4) has stated that he had not
seen the appellant committing any wrong act with any girl child
between 7-7:30 PM. He has also reiterated about his awareness that
the appellant had committed wrong act with the victim girl by
putting his finger in private part of the victim after which he was
arrested by police.
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44. At this stage, it is worth mentioning that the defence
has not set up a plea in course of cross-examination of the
prosecution witnesses that the victim girl had not visited the shop of
the appellant in the evening of 22.11.2022. These defence witnesses
have though stated that they had not seen the appellant committing
any occurrence with the victim girl but at the same time they have
shown their unawareness about the occurrence. Dhirendra Kumar
Chaudhary (DW-5) is the full brother of the appellant who has
proved Exhibit ‘A’ and Exhibit ‘B’. He has stated that on
22.11.2022 he was outside Khagaria. He has stated that he had
taken the sale deed from two uncles of Vicky and for that reason,
the quarrel were taking place. This witness had not stated that either
on 22.11.2022 or in recent time any quarrel had taken place
between the appellant and the family of Vicky.
45. In the opinion of this Court, the testimony of defence
witnesses do not inspire confidence.
46. In ultimate analysis, this Court finds that the defence
has completely failed to rebut the prosecution case. On the other
hand, the prosecution case has been proved beyond all reasonable
doubts. This Court, therefore, finds no reason to interfere with the
judgment of conviction of the appellant under section 6 of the
POCSO Act.
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47. So far as the sentence awarded to the appellant is
concerned, this Court finds that section 6 of the POCSO Act
provides a minimum punishment of rigorous imprisonment for a
term of twenty years. The learned trial court has awarded the
minimum sentence, therefore, on this point as well there would be
no interference.
48. This appeal fails.
49. A copy of the judgment along with the trial court
records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
SUSHMA2/-
AFR/NAFR CAV DATE 19.06.2025 Uploading Date 25.06.2025 Transmission Date 25.06.2025