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
======================================================
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
======================================================
Appearance :
For the Appellant/s : Mr. Sunil Kumar Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
======================================================
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
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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
07.09.2021
at 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
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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
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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 SahchariList 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
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Ext. P- 10 Seizure list
Ext. P- 11 Seizure list regarding mobile
Ext. P-12 Certificate regarding C.D.R. signed by
Rajiv KumarList of Defence Witnesses
DW-1 Pinki Devi
DW-2 Amit Kumar
DW-3 Kajal KumariList 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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
27/46To 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
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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
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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
32/46termed 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 Aiz”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
36/46vkids 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
37/46deputation 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
38/46which 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
39/46the 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
40/46injuries 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
42/46committed 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
43/46or 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