Patna High Court
Arvind Kumar @ Bittu Kumar vs The State Of Bihar on 30 July, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.31 of 2023
Arising Out of PS. Case No.-75 Year-2018 Thana- SARMERA District- Nalanda
======================================================
Bablu Kumar, Son of Upendra Prasad, Resident of village - Ahiyapur, P.S.-
Sarmera, District - Nalanda.
... ... Appellant
Versus
1. The State of Bihar
2. 'X', Daughter of 'Y', Resident of village and P.S.- Sarmera, District -
Nalanda.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 939 of 2022
Arising Out of PS. Case No.-75 Year-2018 Thana- SARMERA District- Nalanda
======================================================
Dahan Yadav, Son of Ramji Yadav, R/V- Sarmera Vasetar, P.S- Sarmera, Dist-
Nalanda.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 40 of 2023
Arising Out of PS. Case No.-75 Year-2018 Thana- SARMERA District- Nalanda
======================================================
Arvind Kumar @ Bittu Kumar, Son of Muneshwar Chaudhary, Resident of
Village- Sarmera, P.S.- Sarmera, District- Nalanda.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 31 of 2023)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Mudit Meet, Advocate
Ms. Kiran Kumari, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
(In CRIMINAL APPEAL (DB) No. 939 of 2022)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Mudit Meet, Advocate
Ms. Kiran Kumari, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
2/33
(In CRIMINAL APPEAL (DB) No. 40 of 2023)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Mudit Meet, Advocate
Ms. Kiran Kumari, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 30-07-2025
Heard Mr. Ajay Kumar Thakur, learned counsel for the
appellants in all the three appeals and Mr. Abhimanyu Sharma,
learned Additional Public Prosecutor for the State.
2. The informant has been noticed, she has entered
appearance through a learned Advocate of this Court but no one
has appeared today to oppose the appeals.
3. These appeals have been preferred for setting aside
the judgment of conviction dated 17.11.2022 (hereinafter referred
to as the 'impugned judgment') and the order of sentence dated
21.11.2022
(hereinafter referred to as the ‘impugned order’)
passed by learned Additional District and Sessions Judge-VII-
cum-Special Judge, POCSO Act, Nalanda at Biharsharif
(hereinafter referred to as the ‘learned trial court’) in G.R. No.
2345 of 2018, POCSO Case No. 2345 of 2018 arising out of
Sarmera P.S. Case No. 75 of 2018. By the impugned judgment, the
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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appellants have been convicted for the offences under Sections
376(D) of the Indian Penal Code (in short ‘IPC‘) and 4/6 read with
Section 5(g) of the Protection of Children from Sexual Offences
Act (in short ‘POCSO Act‘) and appellants, namely, Bablu Kumar
and Dahan Yadav have also been convicted for the offences under
Section 3(1)(w)(i) read with 3(1)(w)(ii) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act (in short
‘SC/ST Act’). By the impugned order, they have been ordered to
undergo rigorous imprisonment for life with a fine of Rs.20,000/-
each under Section 376(D) IPC and in default of payment of fine,
they have to further undergo six months simple imprisonment.
Further, Dahan Yadav and Bablu Kumar have been ordered to
undergo three years rigorous imprisonment with a fine of
Rs.10,000/- each under Section 3(1)(w)(i) read with 3(1)(w)(ii) of
the SC/ST Act and in default of payment of fine, they have to
further undergo three months simple imprisonment.
Prosecution Case
4. The prosecution case is based on the written
application of the informant (PW-3). In her written application
(Exhibit ‘1’), she has stated that on 16.06.2018, at 08:00 PM she
was going to the house of her chachera Mausa situated at Sarmera
Balwabhitha. When she reached in front of the Bus Stand at
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Sarmera Road, then Vikash Kumar stopped her, got her seated on
his motorcycle and took her in a hut situated at Ahiyapur Musahari
in which there was a chachari of bamboo. She was asked to sit
there, meanwhile Vikash Kumar called his friends, namely, Arvind
Kumar @ Bittu Kumar, Dahan Yadav and Bablu Kumar.
Thereafter, all four accused committed rape on her one by one and
took photographs from mobile. All the four accused fled away
leaving her there. Anyhow she came to her house and gave
information to her mother and family members, thereafter, she
came to the police station.
5. On the basis of this written application, Sarmera P.S.
Case No. 75 of 2018 was registered on 17.06.2018 under Section
376(D) IPC, Section 4/8 of the POCSO Act and Section 3(2)(va)
of the SC/ST Act against all four accused, namely, (1) Vikash
Kumar, (2) Arvind Kumar @ Bittu Kumar, (3) Dahan Yadav and
(4) Bablu Kumar. After investigation, Police submitted chargesheet
bearing Chargesheet No. 85 of 2018 dated 10.09.2018 under above
mentioned Sections against all four accused. On the plea of
juvenility taken by accused Vikash kumar, learned trial court vide
order dated 07.08.2018 sent the records of accused Vikash Kumar
to Juvenile Justice Board, Biharshariff for age determination and
further enquiry. Learned trial court vide order dated 06.12.2018
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took cognizance of the offences under above mentioned Sections.
Charges were read over and explained to the appellants in Hindi to
which they pleaded not guilty and claimed to be tried, accordingly,
vide order dated 22.01.2021, charges were framed under Section
376(D)/34 IPC, Section 3(1)(w)(i) read with 3(1)(w)(ii) of the
SC/ST Act and Section 4 read with Section 3 and Section 6 read
with 5(g) of the POCSO Act.
6. In course of trial, the prosecution has examined
altogether ten witnesses and exhibited several documentary
evidences. The description of prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Anil Kumar
PW-2 Father of the Victim
PW-3 Victim
PW-4 Mother of the Victim
PW-5 Priti Kumari Sinha
PW-6 Dr. Ram Kumar Prasad
PW-7 Dr. Kumkum Kumari
PW-8 Jitendra Kumar
PW-9 Ajay Kumar
PW-10 Shefali NarayanList of Exhibits on behalf of the Prosecution
Exhibit ‘1’ Written Application
Exhibit ‘1/1’ Signature of victim on written
application
Exhibit ‘1/2’ Signature of Anil Kumar on written
application
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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written application
Exhibit ‘2’ Signature of Anil Kumar on seizure
list
Exhibit ‘2/1’ Seizure list of seized clothes of the
victim
Exhibit ‘3’ Signature of the victim on h er
Statement u/s 164 CrPC
Exhibit ‘3/1’ Statement of the victim u/s 164
CrPC
Exhibit ‘4’ Signature of the victim on Medical
Report
Exhibit ‘4/1’ Signature of Dr. Ram Kumar on
Medical Report
Exhibit ‘4/2’ Medical Report
Exhibit ‘4/3’ Signature of Dr. Kumkum Kumari
on Medical Report
Exhibit ‘5’ FIR
Exhibit ‘6’ Seizure list of seized mobile from Vikas
Kumar
Exhibit ‘7’ Seizure list of seized mobile from Bablu
Kumar
Exhibit ‘8’ and Exhibit Seizure list of seized clothes of Arvind
‘8/1’ Kumar and vikas
Exhibit ‘8/2’ Seizure list of seized clothes of Dahan
Yadav
Exhibit ‘8/3’ Seizure list of seized clothes of Bablu
Kumar
Exhibit ‘9’ Chargesheet
Exhibit ’10’ Form-7 of FSL
Exhibit ’10/1′ FSL Report No. 036994
Exhibit ’10/2′ FSL Report No. 036995Material Exhibits
Material Exhibit I to Nine photographs of victim related to
I/8 the occurrence
7. Thereafter, the statement of the appellants were
recorded under Section 313 of the CrPC. The appellants denied
all the allegations and took a plea that they are innocent and have
falsely been implicated.
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8. The defence has not adduced any oral or documentary
evidence.
Findings of the Learned Trial Court
9. Learned trial court after examining all the evidences
available on the record found that the victim is aged about 15
years and all the prosecution witnesses have supported the
prosecution case. Learned trial court found that the prosecution has
been able to prove its case beyond all shadow of doubt. Learned
trial court observed that the victim is consistent in her 161 CrPC
statement and 164 CrPC statement as well as in her deposition in
course of trial, hence, her evidence is trustworthy and falls in the
category of a sterling witness.
10. Learned trial court found that FSL Report (Exhibit
’10’, ’10/1′ and ’10/2′) proves the allegation of rape. Learned trial
court found that the accused has not taken a defence that the blood
and semen found on the jhanghiya and legging of the victim were
not their.
11. Learned trial court after considering all the facts and
circumstances of the case found that the prosecution has been able
to prove charges under Section 376(D)/34 IPC, Section 3(1)(w)(i)
read with 3(1)(w)(ii) of the SC/ST Act and Section 4/6 read with
5(g) of the POCSO Act beyond all reasonable doubts and
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accordingly, convicted them for the charges under Section 376(D)
IPC and Section 4/6 read with Section 5(g) of the POCSO Act and
further convicted appellants, namely, Dahan Yadav and Bablu
Kumar under Section 3(1)(w)(i) read with 3(1)(w)(ii) of the SC/ST
Act.
Submissions on behalf of the appellants
12. Mr. Ajay Kumar Thakur, learned counsel for the
appellants, has made the following submissions:-
(i) The victim (PW-3) is not a sterling witness in this
case, therefore, it would not be safe to convict the appellants on
the basis of the oral testimonies of the victim.
(ii) The medical evidence brought on the record and
proved as Exhibit ’04/03′ through Dr. Kumkum Kumari (PW-7),
completely rules out a case of sexual violence. PW-7 has
categorically stated in course of her cross-examination that she had
minutely observed the body of the victim, including her buttock
and private part. She did not find any bruises, abrasion or any kind
of injury on the private part of the victim or any other part of the
victim’s body. PW-7 has stated that in case of rape by more than
one person, there is possibility of injury. As per the medical
examination report, the victim was menstruating on the date of her
examination.
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(iii) The Forensic Science Laboratory (in short ‘FSL’)
report (Exhibit ’10’ and Exhibit ’10/1′) have no probative value in
the facts of the present case. PW-8 and PW-9, who are the
Assistant Director of FSL, Patna and Assistant Director (Serology)
at FSL, Patna respectively have deposed. According to Exhibit
’10’, blood has been detected in the Exhibit Mark – ‘B/i/a’ over
small areas and Exhibit Mark ‘B/ii’ – over large areas. These two
exhibits are the salwar and janghiya of the victim. Blood has been
detected in Exhibit Mark ‘D/i’ and ‘E/iv’ but was too small for
serological examination. Exhibit ‘D/i’ is the janghiya of the
accused Vikash Kumar whereas Exhibit ‘E/iv’ is the orange color
gamcha said to be of accused Arvind Kumar. There is no matching
of bloods found on exhibits Mark ‘B/i/a’, ‘B/ii’, ‘D/i’ and ‘E/iv’
either with the blood samples of the victim or with that of the
accused persons. Semen has been detected in Exhibit ‘B/ii’ and
‘D/i’.
13. PW-8 has stated in his cross-examination that the
report of the FSL does not show that who were the members of the
team constituted by Director, FSL for the forensic examination. He
has also stated that on perusal of the report that it does not mention
that the detection of semen was done on the basis of spermatozoa
and protein or that the semen was detected on the basis of presence
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of spermatozoa or protein both. According to PW-8, the office
received the sample on 25.06.2018 but the report does not reveal
that when the forensic investigation got started and when it was
concluded. In paragraph ‘9’ he has stated that the samples belong
to same persons or of different persons cannot be said. PW-9 has
proved Exhibit ’10/2′ which is the report prepared by Shri Ajay
Kumar, Assistant Director, FSL, Patna and countersigned by the
Director I/c Das Ashok Kumar. This witness has stated that after
two scientific investigations such as serological examination and
after matching with the origin and grouping, the results were
obtained but it may be found from paragraph ‘2’ of his deposition
that the grouping could not be determined and the result of test for
blood grouping in all the aforementioned exhibits remained
inconclusive. In paragraph ‘4’ of his deposition he has stated that
out of four samples only sample ‘D/i’ contained the semen which
was the only sample which matched with the blood grouping ‘B’
but it cannot be ascertained that the grouping ‘B’ was of which
individual, however, it belonged to a human being which is
mentioned in the report. Relying upon the judgment of the Hon’ble
Supreme Court in the case of Krishna Kumar Malik versus State
of Haryana reported in (2011) 7 SCC 130, learned counsel has
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submitted that in such circumstance, the FSL reports proved by
PW-8 and PW-9 would not carry any corroborative value.
14. Learned counsel further submits that from the
evidence of the I.O. (PW-5) it would appear that she claims to
have seized the clothes of the victim girl and prepared the seizure
list (Exhibit ‘2/1′) in Sarmera Police Station, however, from the
victim girl (PW-3) it would appear that in paragraph ’18’ of her
cross-examination she has stated that her clothes were kept by
police personnel in Bihar Police Station. The Doctor (PW-7) has
stated that the clothes of the victim were not given to him for
pathological tests. As regards the place of occurrence, even as the
I.O. (PW-5) claimed in paragraph ‘3’ of her deposition that she had
inspected the place of occurrence with the victim and the armed
forces but the victim (PW-3) has stated that police had not taken
her for the second time to the place of occurrence.
15. It is submitted that according to the I.O. (PW-5), the
place of occurrence is a brick khaprail room at the south-east
corner of a hut and there was a boundary wall from all the four
sides which were in damaged condition. According to him, in the
brick khaprail room there is an iron door. The occurrence is said to
have been committed in this room but the victim (PW-3) has
clearly stated that there was no door/gate in the hut where rape was
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committed with her and according to PW-3, the hut was made of
mud and cement.
16. It is further submitted that the I.O. (PW-5) has
proved some photographs which she claimed to have taken out
from the mobile phone of one of the appellant Babloo Kumar. She
has proved the seizure list of the mobile phone of Babloo Kumar
as Exhibit ‘7’ but the said mobile phone was not sent to the FSL
for forensic examination. PW-5 has stated in paragraph ’23’ of her
deposition that she has mentioned about the nine half naked photos
in paragraph ’53’ of the case diary but she did not remember from
where she had taken out the print of the half naked photos. She has
stated that she had not sealed the mobile phone and the mobile was
kept in the Malkhana of Sarmera Police Station but she had not
written all these facts in the case diary and she had not proved any
serial number of the Malkhana register giving proof of deposit of
mobile phone in the Malkhana. She has admitted in paragraph ’25’
of her cross-examination that in the half naked photographs, the
face of the victim is not clearly seen and she had not sent those
photographs for any scientific investigation to an expert.
17. It is lastly submitted that the age determination of the
victim has been done and the doctor (PW-6) who was posted at
Sadar Hospital, Biharsharif and had conducted examination on
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17.06.2018 for age determination of the victim has proved the
medical report given by the Medical Board as Exhibit ’04/01′.
They have not found any injury on the pelvic part, spermatozoa
was not found, however, RBC was present in plenty due to
menstruation.
18. The radiological findings have been recorded in the
report and on the basis of the same, the doctor was of the opinion
that the age of the victim is between 15 to 16 years. In his cross-
examination, PW-6 has stated that in sexual offence cases, the life
of a spermatozoa may be found up to forty eight hours and dead
spermatozoa may be found for seventeen days. The cloth of the
victim was not brought before him for pathological examination.
On the strength of this report proved by PW-6, learned counsel has
submitted that in view of the judicial pronouncements on the
subject in the matter of age determination of the victim in the cases
of the present kind, the margin of +/- two years may be given. In
that case, the upper age of the victim could be eighteen years.
Reliance has been placed on the judgment of the Hon’ble Delhi
High Court in the case of Court on its own Motion vs. State of
NCT of Delhi (Crl. Ref. 2/2024 judgment dated 02.04.2024)
which has been followed by this Court in Cr. Appeal (DB) No. 461
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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of 2022. On all these grounds, prayer has been made to set aside
the impugned judgment and order of the learned trial court.
Submissions on behalf of the State
19. The appeal has been contested by learned Public
Prosecutor. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State submits that in this case the learned trial
court has analysed the evidences of the prosecution witnesses and
rejected the contentions of the defence by providing cogent
reasons in the impugned judgment.
20. The learned trial court has rightly rejected the
contention of the defence with regard to the conduct of the victim
and her family members in not reporting the occurrence to the
police station in the night of 16.06.2018 itself. The trial court has
taken a view that the victim has given sufficient explanation for
the delay. Citing the judgment of the Hon’ble Supreme Court, the
learned trial court has taken a view that the delay in lodging FIR in
rape cases is not of much significance as the victim and family
have to muster courage to come out as there is always a fear of
social stigma and lack of inner strength to go for legal battle in
such cases.
21. It is submitted that the learned trial court has also
rejected the submission of the defence that the prosecution
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witnesses are the closely related family members of the victim.
The trial court has also rejected the contention of the defence that
there are material contradictions in the evidence of the prosecution
witnesses. It has been held on the strength of the judgment of the
Hon’ble Supreme Court that the law does not require corroboration
and therefore if the evidence of the prosecutrix is believed, there
would be no bar to convict the accused on her testimony alone.
22. It is submitted that the learned trial court has not
found any material contradiction in the evidence of the victim and
the kind of contradictions even if it is there, the same cannot create
a doubt over the prosecution case.
23. It is pointed out that the learned trial court has also
rejected the contention of the defence as regards the photographs
(Exhibits I’, ‘I/1’, ‘I/2’, ‘I/3’, ‘I/4’, ‘I/5’, ‘I/6’, ‘I/7’ and ‘I/8’) even
as no certificate under Section 65B of the Indian Evidence Act was
produced in support of admissibility of these exhibits. The learned
trial court has held that the victim in this case is a sterling witness.
The learned Additional Public Prosecutor has therefore supported
the impugned judgment.
24. As recorded hereinabove, no one appeared on behalf
of the informant to oppose the appeals.
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Consideration
25. We have heard learned counsel for the appellants and
learned Additional Public Prosecutor for the State and have
perused the trial court’s records.
26. From the written information dated 17.06.2018
(Exhibit ‘1’) of the victim girl (hereinafter called ‘victim’ or ‘X’),
it appears that the alleged occurrence took place on 16.06.2018 at
about 8:00 PM when she was going to her mausa’s house at Balwa
Bhitha situated in Sarmera. The first place of occurrence in this
case is Sarmera Bus Stand where according to Exhibit ‘1’, the
child in conflict with law (‘CICL’) namely Vikash Kumar stopped
‘X’ and she was seated on the motorcycle. He took ‘X’ to a hut in
Ahiyapur Musahari where she was made to sit on bamboo chachri.
Vikash Kumar called his friends Arvind Kumar @ Bittu, Babloo
Kumar and Dahan Yadav whereafter all the four committed rape
on her one after another and they took photographs from the
mobile. They left her there and fled away. The victim came to her
house on her own and informed her mother and relatives
whereafter she came to the police station and lodged the FIR.
27. The victim has been examined as PW-3. In her
examination-in-chief she has stated that when she reached Sarmera
Bus Stop then Vikash (a juvenile) came on a motorcycle and asked
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her that where was she going? On this, she disclosed that she was
going to her mausi’s house then he said that he would drop her
there and on this pretext he got her seated on his motorcycle but
thereafter she was not aware that where was she taken as she did
not know the name of the village. From this part of her statement,
it appears that PW-3 did not know the name of the village and
where was she taken on the motorcycle, if it is so then how she
mentioned the name of village Ahiyapur Musahari in her written
information is not known. Her statement that she was not aware of
the place where she was taken would throw a serious doubt as to
how she could take the name of the village Ahiyapur Musahari. In
such circumstance, the statement of I.O. (PW-5) that she had
visited the place of occurrence with PW-3 and armed forces would
not inspire confidence. She had seen that there was a hut made of
mud and cement and there were some bamboo articles. Vikash
made her to lie on the same and thereafter he made a telephone call
to Arvind, Babloo and Dahan then all the four assembled and
committed wrong act with her. She has stated that photos were also
taken and the video was made. Babloo was taking photos.
Contrary to her statements in the written information (Exhibit ‘1’)
that the accused persons left her at the place of occurrence and fled
away whereafter she reached her house on her own, this witness
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has stated in her examination-in-chief that after the occurrence
clothes were put on her mouth, Vikash and Arvind brought her on
motorcycle and left her at the bus stop whereafter she went to her
house and told the occurrence to her mother. On the next day, they
came to the police station and lodged the FIR. She has stated that
the application giving rise to the FIR was written by his brother
(PW-1). Her statement under Section 164 CrPC was recorded and
medical examination was also conducted. She also identified the
hut in the photographs and has stated that those were her photos in
which the hands taking out her clothes may be seen. On her
identification Material Exhibits ‘I’, ‘I/1’, ‘I/2’, ‘I/3’, ‘I/4’, ‘I/5’,
‘I/6’, ‘I/7’ and ‘I/8’ were marked.
28. In her cross-examination, PW-3 has stated that in all
these photographs her face cannot be seen and no date may be
found in the photographs. She has stated that she had concealed
her face due to shame. She had left her house after her mother
scolded. She has stated that her mausi’s house is at a distance of 6-
7 minutes from the bus stand but she was taken by a different road.
She had tried to raise hulla but her mouth was tied with clothes.
She has stated that her mouth was not tied at the bus stop where
she was seated on the motorcycle but after taking her to some
distance, her mouth was tied by a white coloured gamchi. She has
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stated that when Arvind sat, darkness had already prevailed and
she could not know that where she was being taken. She has stated
that in the running condition of the motorcycle Arvind had tied her
mouth by cloth and had tightly caught her. At this stage, this Court
finds that while in her examination-in-chief she has not stated that
her mouth was tied with any cloth when she was being taken on
the motorcycle by Vikash and she has stated that Vikash had called
Arvind, Babloo and Dahan at the place of occurrence after
reaching there, in her cross-examination this witness has stated
that Arvind sat when the darkness had prevailed and in the running
condition Arvind had tied her mouth by cloth. This is a material
deviation from her statement in the examination-in-chief.
29. As regards the place of occurrence, this witness has
stated that in paragraph ’11’ that there was darkness in the hut and
no one was there from before, there was no door in the said hut.
She has not stated about any source of light in the said hut. She has
stated in paragraph ’11’ that when she was protesting against the
act of the accused persons then she was being assaulted, her legs
were tied and for two and half hours – three hours wrong act was
committed with her, during the said occurrence she was becoming
unconscious then Arvind and Babloo were sprinkling water on her
face. She has stated that after all the accused had committed wrong
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act with her and she had become unconscious then after five
minutes she was taken on the motorcycle and was left at the bus
stand from where she reached her house within ten minutes. At this
stage, this Court finds that once again the victim has made material
deviation from her statement in the examination-in-chief,
according to her she had become unconscious when she was being
taken on the motorcycle and was left at the bus stand. She has not
stated at this stage that clothes were forced in her mouth or her
mouth was tied by clothes when she was being taken to the bus
stand to drop. She has stated that she was in unconscious
condition.
30. As regards the place of occurrence, the victim has
stated that it was a mud and cement hut but the I.O. (PW-5) has
given a completely different picture of the place of occurrence.
She has stated in paragraph ‘4’ that the second place of occurrence
is an old brick-straw-bamboo made dalan of one Mahesh Prasad in
village Ahiyapur Musahari under Sarmera Police Station. There
was a boundary wall from all the four sides and in front of the hut
towards the south – east corner, there was a brick-khaprail room in
which there was an iron gate, the door was towards the north side
on which “Milan DJ” was written. The place was lonely. I.O. has
not stated in her deposition about any source of light at the place of
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occurrence. She has stated that she had visited the place of
occurrence with the victim and the armed force but the victim
(PW-3) has stated that police had not taken her again to the place
of occurrence and police had not visited her house. To this Court, it
appears that the place of occurrence in this case has not been duly
established by the prosecution. The description of the place of
occurrence given by the victim materially differs with that of the
description provided by the I.O. (PW-5).
31. It is further found that the attention of the victim
(PW-3) was drawn towards her statements made before police and
the Judge as also towards her written information, PW-3 has
admitted that in all the three statements made by her she had never
said that Arvind sat on the motorcycle on way and had tied her
mouth. Her attention was also drawn towards her statements
recorded under Section 164 CrPC by the learned Magistrate in
which she had stated that Vikash and Arvind were standing from
before at Sarmera Bus Stop. The 164 CrPC statement has been
marked Exhibit ’03/01′. On going through this exhibit, we find
that the statement of PW-3 was recorded on 18.06.2018 in which
she has stated that when she was going to her mausi’s house at
about 8:00 PM on 16.06.2018, Vikash and Arvind met her at
Sarmera Bus Stop and both of them told her that they would drop
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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her at her mausi’s house. She has stated in her statement (Exhibit
’03/01′) that she was taken to another village where they called
other two friends namely Babloo Kumar and Dahan and thereafter
they took her in a room where they committed rape on her and
then they took her to Sarmera where she was dropped. It is
important to note that in her 164 CrPC statement, the victim has
not stated that either at the time of taking away from the Sarmera
Bus Stop or while dropping to her at Sarmera Bus Stop after
commission of rape, her mouth was tied with clothes. In this
manner she has conveniently changed her statement within one
day of lodging of the FIR.
32. On further analysis of the evidence of the prosecutrix
(PW-3) it appears that in paragraph ’13’ of her deposition, she has
stated that when she reached her house, all the family members
were found sleeping outside the house because it was a summer
season. Her mother was sleeping on a cot outside the house and the
victim disclosed the entire occurrence to her mother whereafter her
mother started weeping. PW-3 has further stated that her brother
and father were sleeping on the roof of the house who were told
about the occurrence by her mother on the next day and on the
next day, all of them went to the police station. She has stated that
her father had also gone to the police station but contrary to her
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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statement, the father of the victim, who has been examined as PW-
2, has clearly stated in paragraph ‘3’ of his deposition that he had
not gone to the police station. He has stated that his wife and child
(bacha) had gone there. PW-2 has not stated that his daughter had
gone to the police station with his wife and son. PW-2 has gone to
the extent of saying in paragraph ‘6’ of his deposition that in
connection with this case, his statement was not recorded by the
police and it further appears from deposition of PW-2 that he had
come to depose from a murder case being Sarmera P.S. Case No.
72 of 2020. He was in jail and had come to depose from the said
case. In this connection, from the deposition of the brother of the
victim, who has been examined as PW-1, it would appear that he is
also an accused in the said case which is in connection with
murder of the brother of one of the appellants Arvind Kumar. In
the said case Vikash was injured.
33. PW-3 has stated that she did not know Babloo and
she had seen him for the first time that day. She had gone to the
police station at 9:30 AM where she found that police had brought
Babloo at the police station and all the four persons were caught
and brought to the police station. This Court finds that according to
the deposition of PW-3 she had gone to the police station at 9:30
AM but on reaching there she saw the accused persons who were
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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brought by police in the police station. It means even before the
reaching of PW-3 to the police station, the accused persons had
been arrested and brought to the police station. At this stage, we
notice that in this case, the formal FIR has been registered on
17.06.2018 at 7:30 AM. The I.O. (PW-5) has stated that on the
basis of the written application of the victim, this case was
registered and she was given charge of the investigation. In
paragraph ’38’ of her deposition, PW-5 has stated that she reached
Sarmera Police Station at 9:35 AM where she found that the victim
was already sitting there and she was sitting in the same clothes in
which the occurrence had taken place with her. The I.O. was
suggested by the defence that even before her reaching to the
Sarmera Police Station, all the accused persons were already
brought to the police station after arresting them but she had made
false entries in the case diary that the accused were arrested one
after another and they were brought to the police station. PW-5
denied this suggestion but this Court finds that from her deposition
it is evident that even before the prosecutrix (PW-3) and the I.O.
(PW-5) reached the Sarmera Police Station at about 9:30 AM/9:35
AM respectively, all the accused persons were already brought to
the police station. This creates a lot of doubt as to how without
disclosure of the occurrence to police by the prosecutrix/victim,
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the FIR had already been registered at 7:30 AM and police had
arrested the four accused persons. This material discrepancy in the
prosecution case is to be considered keeping in view the statement
of PW-2 that it were only his wife and son who had gone to the
police station. It has come in evidence that the brother of the
victim, who has been examined as PW-1, had written the
application but according to PW-1, when her sister went to the
police station, she disclosed the entire occurrence which PW-1 had
recorded and read over to his sister (PW-3) whereafter she had put
her signature on the written application (Exhibit ’01’). The
statement of PW-1 would not inspire confidence of this Court that
the written application was prepared by PW-1 in the police station
and he had recorded the statement made by PW-3 after reaching
the police station. If it would have been so, then there was no
question of registration of FIR at 7:30 AM because it is the
statement of PW-3 that she reached the police station at 9:30 AM.
34. According to PW-3, her clothes were taken by the
police personnel and were kept in Bihar Police Station. The clothes
were sealed by ladies police but she was not aware of any
signature. In this connection, when the evidence of the I.O. (PW-5)
is looked into, this Court finds that PW-5 claims to have seized the
clothes of the victim girl in Sarmera Police Station. In paragraph
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’33’ of her deposition, she has stated that she had not mentioned in
the case diary as to whether there was any stain (daag) on the cloth
of the victim. She had also seized the clothes of the accused
persons, she had not found any stain on their clothes and she had
not sent the accused persons for medical examination even though
she was aware of the provision of Section 53A CrPC which
requires medical examination of the accused of a rape case. This
Court finds that in paragraph ’33’ of her deposition, PW-5 has
stated that all the clothes of the accused and the victim were dried
and packed/sealed and kept the same in the police station.
35. A perusal of the FSL report (Exhibit ’10/1′) would
show that the report has been prepared on 18.12.2019 i.e. after
about one year, six months of the occurrence. It was received in
the FSL Patna on 25.06.2018 i.e. after about eight days of the
seizure. As regards the mode in which the parcel was found to be
packed and received and description of seal, the FSL report
(Exhibit ’10/1′) records as under:-
“The parcel consisted of …… one plastic dibba …….
enclosed within ……. cloth …… cover which was
duly sealed with impressions of seal corresponding
with the seal impression forwarded.
It contained, seventeen (17) sealed paper packets
marked A, B/i, B/ii, B/iii, C/i, C/ii, C/iii, D/i, D/ii,
D/iii, E/i, E/ii, E/iii, E/iv, F/i, F/ii and F/iii
respectively.”
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36. The FSL report (Exhibit ’10/1′) refers Memo
Number 160 dated 23.06.2018 advising dispatch of one parcel per
special messenger …. Chowkidar 4/3 Awadhesh Singh which was
received in the office on 25.06.2018. This Chowkidar Awadhesh
Singh has not been examined. What is surprising is that it is not
known as to when the exhibits, which were sent to the FSL, were
produced before the learned Special Judge.
37. We find from the records that the FIR of this case
was received in court on 18.06.2018. On the same day, an
application was filed by the I.O. to record the statement of the
victim under Section 164 CrPC which was allowed and the
statement was recorded by a learned Magistrate. The accused were
also produced in court and thereafter they were forwarded to the
Divisional Jail, Biharsharif with a custody warrant till 29.06.2018.
The order nowhere mentions about seizure of clothes either of the
accused or the victim. It is not known where the seized clothes
were kept and when did the exhibits which were sent to the FSL,
Patna, prepared and in whose presence the parcel which consisted
of one plastic dibba enclosed with cloth and seventeen sealed
paper packets were prepared.
38. On a close scrutiny of the evidences available on the
record, it appears that there are production-cum-seizure lists of the
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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clothes of the accused persons which are Exhibit ’08/01′, Exhibit
’08/02/ and Exhibit ’08/03′. All these production-cum-seizure lists
have been prepared in Bihar Police Station but I.O. (PW-5)
claimed that all the clothes of the victim and accused were dried
and sealed were kept in the police station but Exhibits ’08/01′,
’08/02′ and ’08/03′ falsify the statements of the I.O. The seizure
list witnesses are Mukesh Yadav, Samrendra Yadav @ Tantan
Yadav, Bhuneshwar Yadav and Ramatar Yadav, all of them are
illiterate persons, their thumb impressions have been shown on the
production-cum-seizure lists, they are residents of different places
such as village and post Sarmera and village Misla, none of the
seizure list witnesses have been produced by the prosecution. It is
rather surprising that these seizure list witnesses have not been
made charge-sheet witnesses in this case. This gives an impression
to this Court that the I.O. (PW-5) was perhaps well aware that the
seizure list witnesses, whose thumb impressions have been shown
on the production-cum-seizure list, would not support the
prosecution case. This Court cannot ignore the case of the defence
as suggested to the I.O. (PW-5) that she had made false entries in
the case diary.
39. On going through the evidence of the doctor (PW-6)
and (PW-7), this Court finds that while PW-6 was a member of the
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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Medical Board which was constituted under the Chairmanship of
the Civil Surgeon-cum-Chief Medical Officer, Nalanda for the
medico-legal examination and age determination of the victim, he
has proved his signature on the medical report (Exhibit ’04/01′).
He has stated that on external examination no injury on pelvic part
was found. The final opinion of the Medical Board was that the
age of the victim is in between 15 to 16 years. PW-6 has stated that
the cloth of the victim was not brought before him for pathological
examination. A perusal of the medical report (Exhibit ’04/02′), it
appears that the Medical Board was constituted to examine the
victim on 17.06.2018 at 2:30 PM, therefore, there cannot be any
doubt that the victim was taken to the Sadar Hospital, Biharsharif
for medical examination before 2:30 PM but the doctor was not
given the clothes of the victim. This raises a doubt that if PW-5
had already seized the clothes of the victim in Sarmera Police
Station itself, then why it was neither produced before the doctor
nor in the court. It further appears from the production-cum-
seizure list of the clothes of the victim (Exhibit ’02/01′) that the
clothes were seized on 17.06.2018 at 9:15 AM. There is no
independent witness to the seizure list (Exhibit ’02/01′). The
brother (PW-1) and mother of the victim (PW-4) are the witnesses.
On the one hand, the seizure list of the clothes of the victim is
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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showing seizure of clothes in Sarmera Police Station, the victim
(PW-3) has stated that her clothes were made to be taken out and
kept in Bihar Police Station. Thus, this Court finds that not only
the seizure of the clothes of the accused and the victims as shown
by the prosecution create a lot of doubt, even the veracity of the
sample sent to the FSL, Patna is highly doubtful.
40. Doctor (PW-7) was also a member of the Medical
Board who had conducted physical examination of the victim. She
has stated in paragraph ‘9’ and ’10’ of her deposition as under:
“9. I minutely observed the body of the victim
including her buttock and private part. I did not
find any bruises, abrasion or any kind of injury on
the private part of the victim or any other part of
the victim’s body.
10. It is true that in case of rape by more than one
person there is possibility of injury.”
Thus, the medical evidence in this case completely rules out
a case of rape by four persons.
41. This Court finds that the doctor (PW-7) has further
stated that the assessment of the age is mainly given on the report
of the radiologist and orthopedics. The main basis of the age
assessment is ossification test. She has further stated in ossification
test that there is always possibility of margin of +/- two years of
age.
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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42. At this stage when we look into this aspect of the
matter, we find that in this case, the age of the victim has been
assessed between 15 to 16 years. Keeping in view the judicial
pronouncements on the subject such as in the case of Rajak
Mohammad v. State of H.P. reported in (2018) 9 SCC 248 and in
the case of Court on its own Motion vs. State of NCT of Delhi
(supra) which this Court has also followed in Cr. Appeal (DB) No.
461 of 2022, the upper stream of the age of the victim would come
to eighteen years.
43. The prosecutrix was menstruating, therefore,
presence of blood on her Exhibits ‘B/i/a’ and ‘B/ii’. So far as
finding of semen on Exhibit ‘D/i’ is concerned, the said exhibit is
the cloth of Vikash Kumar who has been found juvenile. Exhibit
‘E/iv’ is the ‘gamcha’ of Arvind on which blood is said to have
been found but there is no matching of blood found on Exhibit
‘E/iv’ with that of Exhibit ‘B/i/a’ or ‘B/ii’. We have taken note of
these aspects of the matter even as we have found that the
prosecution has failed to prove the veracity of the exhibits sent to
FSL, Patna.
44. In ultimate analysis of the entire evidence available
on the record, we are of the considered opinion that in this case,
the victim (PW-3) cannot be put in the category of a sterling
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witness. She has been changing her statements right from the
beginning, her brother (PW-1) and father (PW-2) both are accused
in the murder case of brother of Arvind Kumar (the appellant in Cr.
Appeal (DB) No. 40 of 2023), the preparation of production-cum-
seizure lists of the clothes of the victim as well as that of the
accused are highly doubtful, non-production of the seized
articles/materials before the Court and there being no proof of the
fact as to how the exhibits which were sent to the FSL were
collected and preserved before sending the same to the FSL, Patna,
there is no examination of seizure list witnesses and the chowkidar
and there being no medical examination of the accused in terms of
Section 53A CrPC, even though they were arrested immediately
after the occurrence and so far as these appellants are concerned,
even the FSL report has not found any presence of blood or semen
on their clothes, there is no matching of blood on Exhibit ‘E/iv’
and the doctor (PW-7) has not found on microscopic examination
of vaginal swab any smears/spermatozoa and the RBC were
present in plenty due to menstruation, in the kind of evidences on
record, it would not be safe to convict the appellants for the
offences punishable under Sections 376(D) IPC and 4/6 read with
Section 5(g) POCSO Act and appellants, namely, Bablu Kumar
Patna High Court CR. APP (DB) No.31 of 2023 dt.30-07-2025
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and Dahan Yadav for the offences under Section 3(1)(w)(i) read
with 3(1)(w)(ii) of the SC/ST Act.
45. In our considered opinion, the prosecution has failed
to prove even the primary facts which would have laid down the
foundation for the case beyond all reasonable doubts.
46. In result, the impugned judgment and order is set
aside. The appellants are acquitted of the charges giving them
benefit of doubt.
47. The appellants are in incarceration, hence they shall
be released forthwith if not wanted in any other case.
48. These appeals are allowed.
49. Let a copy of this judgment along with trial court’s
record be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
(Shailendra Singh, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 04.08.2025 Transmission Date 04.08.2025
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