Patna High Court
Tusi Devi vs The State Of Bihar on 14 August, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 224 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
RAJBALLABH PRASAD @ RAJBALLABH YADAV Son of Late Jehal
Yadav Resident of Village - Pathra English, P.S. - Mufassil, District - Nawada.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 165 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
Sulekha Devi Wife of Arun Kumar Resident of Garhpar, Professor Colony,
P.S.- Bihar, District - Nalanda.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 200 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
Radha Devi Wife of Surendra Kumar R/o village- Ramchandrapur, Shivpuri,
Talab Par, P.S- Laheri, District- Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 218 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
2/315
======================================================
Sandeep Suman @ Pushpanjay Son of Sanjay Kumar Resident of Village -
Amar Singh Bigha, P.S.- Sare, District - Nalanda. At present resident of
Ranchi Road Patel Nagar, P.S.- Laheri, District - Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 226 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
TUSI DEVI Wife of Sri Pramod Kumar Resident of Village - Ranisarai, P.S.-
Bakhtiyarpur, District - Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 243 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
======================================================
CHHOTI DEVI @ AMRITA Wife of Sandeep Suman Resident of Ranchi
Road, L.I.C. Building P.S.- Laheri, District - Nalanda
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance:
(In CRIMINAL APPEAL (DB) No. 224 of 2019)
For the Appellant/s : Mr. Surendra Singh, Sr. Advocate
Mr. Rajiv Kumar Singh, Sr. Advocate
Mr. Gopal Bohra, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 165 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Mr. Ritwaj Raman, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 200 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Ritwaj Raman, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 218 of 2019)
For the Appellant/s : Mr. Rajesh Kumar Singh, Sr. Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 226 of 2019)
For the Appellant/s : Mr. Aaruni Singh, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
(In CRIMINAL APPEAL (DB) No. 243 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
For the Prosecutrix : Ms. Anukriti Jaipuriyar, Adv. (Amicus Curiae)
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 14-08-2025
The aforesaid six appeals preferred under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred to
as the 'Cr.P.C.') arise out of the same judgment of conviction
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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dated 15.12.2018 and order of sentence dated 21.12.2018, passed
by the learned Special Judge (Elected Member of Parliament,
Member of Legislative Assembly and Member of Legislative
Council), Bihar, Patna (hereinafter referred to as the "Ld. Trial
Judge"), in Special Case No. 145 of 2018 (arising out of Mahila
(Nalanda) P.S. Case No. 15 of 2016) and therefore, these appeals
have been heard together and are being disposed off by the
present common judgment and order.
2. By the impugned judgment and order, the appellants have
been convicted and sentenced as under:
Cr. Appeal (DB) No. 224 of 2019
Appellant's Conviction Sentence
name under Section Imprisonment Fine In default of
(Rs.) fine
Rajballabh 376 of the IPC Life 50,000/- Six months
Prasad @
Rajballabh Imprisonment simple
Yadav
imprisonment
(herein
after 4 of the No separate X X
referred to Protection of sentence
as the Children from
Appellant Sexual Offences
No.1) Act, 2012
(hereafter
referred to as
the "POCSO
Act")
8 of the Five years 10,000/- Three months
POCSO Act rigorous simple
imprisonment imprisonment
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Cr. Appeal (DB) No. 165 of 2019
Appellant's Conviction Sentence
name under Section Imprisonment Fine In default of
(Rs.) fine
Sulekha 366A of the IPC 10 years 10,000/- 3 months simple
Devi rigorous imprisonment
(hereinafter imprisonment
referred to 376/120B of the Life 20,000/- 3 months simple
as the IPC imprisonment imprisonment
Appellant
No.2) 4 /17 of the Life 20,000/- 3 months simple
POCSO Act imprisonment imprisonment
8/17 of the 5 years rigorous 10,000/- 3 months simple
POCSO Act imprisonment imprisonment
4 of The 10 years x x
Immoral Traffic rigorous
(Prevention) imprisonment
Act, 1956
(herein after
referred to as
the Act, 1956)
5 of the Act, 10 years x x
1956 rigorous
imprisonment
Cr. Appeal (DB) No. 200 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine (Rs.) In default of
fine
Radha Devi 376/120B of the Life 20,000/- 3 months simple
(herein after IPC imprisonment imprisonment
referred to
as the 4 /17 of the Life 20,000/- 3 months simple
POCSO Act imprisonment imprisonment
Appellant
No.3)
8 /17 of the 5 years rigorous 10,000/- 3 months simple
POCSO Act imprisonment imprisonment
4 of the Act, 10 years x x
1956 rigorous
imprisonment
5 of the Act, 10 years x x
1956 rigorous
imprisonment
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Cr. Appeal (DB) No. 218 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Sandeep 4 of the Act, 10 years x x
Suman @ 1956 rigorous
Pushpanjay imprisonment
(herein after
X
referred to 5 of the Act, 10 years x
as the 1956 rigorous
Appellant imprisonment
No.4)
376/120B of the 10 years 10,000/- 3 months
IPC rigorous simple
imprisonment imprisonment
Cr. Appeal (DB) No. 226 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Tusi Devi 4 of the Act, 10 years x x
(herein after 1956 rigorous
referred to imprisonment
as the
Appellant 5 of the Act, 10 years x x
No.5) 1956 rigorous
imprisonment
376/120B of the 10 years 10,000/- 3 months simple
IPC rigorous imprisonment
imprisonment
Cr. Appeal (DB) No. 243 of 2019
Appellant's Conviction Sentence
name under Section
Imprisonment Fine In default of
(Rs.) fine
Chhoti Devi 366A of the IPC Ten years 10,000/- Three months
@ Amrita rigorous simple
(herein after imprisonment imprisonment
referred to .
as the
4 of the Act, 10 years x x
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Appellant 1956 rigorous
No.6) imprisonment
5 of the Act, 10 years x x
1956 rigorous
imprisonment
376/120B of the Ten years 10,000/- Three months
IPC rigorous simple
imprisonment imprisonment
All the aforesaid sentences have been ordered to run
concurrently.
3. Short facts of the case are that the prosecutrix had filed a
written report on 09.02.2016 before the Officer-in-Charge,
Mahila Police Station, Biharsharif, Nalanda wherein she had
stated that she is aged about 15 years, she is resident of Village-
Sultanpur, P.S.-Rahui, District-Nalanda and at the moment she is
staying with two of her elder sisters and one younger brother in
the house of Bishundeo Kumar on rent, which is situated at
Garhpar, Professor Colony and there she resides and studies. She
has further stated that in her neighbourhood Sulekha Devi
(Appellant No.2), wife of Arun Kumar, Mohalla- Garhpar
(Professor Colony), P.S.-Biharsharif, District-Nalanda is
residing, with whom they had developed good acquaintance. On
06.02.2016
at about 4 o’clock in the evening, Sulekha Devi
asked the prosecutrix to come along with her to a birthday party,
whereafter she asked her elder sister i.e P.W.-1, then she
enquired as to where she has to go, upon which she replied- near
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Bharao Chowk and then her sister had given permission to go.
The prosecutrix had left along with Sulekha Devi and her
daughter, namely Chhoti (Appellant No.6) and then she was
firstly taken to Ramchandarpur Bus Stand, from where they had
caught a bus to go to Bakhtiyarpur and when the prosecutrix had
asked them as to where she was being taken, Sulekha Devi
(Appellant No.2) told her that she would pick her mother from
Bakhtiyarpur and then they would go along with her to the party.
Thereafter, they reached Bakhtiyarpur where a Bolero vehicle
was parked and after staying there for some time Sulekha Devi
along with her mother and the prosecutrix sat in the vehicle and
then they reached Giriyak in between 11.00-11.30 P.M. The
prosecutrix could not read the name of the place since it was
dark, whereafter she was taken to a house which was four
storied, situated at Giriyak, P.S.-Biharsharif and she was made to
sit there by Sulekha Devi (Appellant No.2), who then told her
that one teacher would come and ask her some questions. The
prosecutrix then told her that they were to go to a birthday party
but instead where she has been brought, upon which Sulekha
Devi (Appellant No.2) told her that Sir is a very nice person,
hence she should do whatever she is saying quietly. After some
time, a person came in the house, who was around 40-50 years
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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old, whose name the prosecutrix does not know and he along
with Sulekha Devi (Appellant No.2) started taking liquor,
whereafter she was also asked to drink, but she had objected.
Outside, 4-5 persons were standing, who were keeping a watch.
After, consuming liquor, Sulekha Devi (Appellant No.2) had
disrobed the prosecutrix, made her lie down on the bed, caught
her hand and stuffed cloth in her mouth, whereafter the person
who had consumed liquor raped the prosecutrix and thereafter
Sulekha Devi (Appellant No.2) had taken the prosecutrix to
another room. In the morning at about 10:00 A.M., Sulekha Devi
(Appellant No.2) had brought the prosecutrix along with her and
dropped her at her house. The prosecutrix has also stated that
when she was in the other room of the aforesaid house, she heard
about exchange of money. After coming back, the prosecutrix
had disclosed the entire incident to her elder sister PW-1 in the
evening. After hearing about the occurrence, sister of the
prosecutrix had informed her father and then her father had
arrived there, who heard about the entire incident and then he
has brought the prosecutrix to the police station where she is
submitting her written report. The prosecutrix has also stated that
she can recognize the person who had committed the aforesaid
incident as also those persons who were keeping vigil, upon
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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seeing them again. The prosecutrix has prayed for taking
appropriate legal action.
4. On the basis of the written report dated 09.02.2016, a
Formal FIR, bearing Mahila (Nalanda) P.S. Case No. 15 of 2016
was registered on 09.02.2016 at 10.30 A.M. for the offences
under Sections 376, 420, 34 of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC‘), Sections 4, 6, and 8 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the ‘POCSO Act, 2012‘) against
Sulekha Devi (Appellant No. 2), one 40-50 years old person and
4-5 other persons. Later on, vide order dated 26.02.2016 passed
by the Ld. A.D.J.-1st-cum-Special Judge, MP/MLA Court,
Nalanda at Bihar Sharif, Sections 366(A)/370/370(A)/212/
120(B) of the IPC and Sections 4/5/6 of the Immoral Traffic
(Prevention) Act, 1956 (hereinafter referred to as the ‘Act,
1956’) were added.
5. After investigation and finding the case to be true qua all
the aforesaid six appellants, the police submitted charge-sheet
No. 30 of 2016 on 20.04.2016 under Sections 366(A), 376, 370,
370(A), 212, 420, 109, 120(B) of the IPC, Sections 4, 8 and 17
of the POCSO Act and Sections 4, 5 and 6 of the Act, 1956,
while keeping the investigation pending against accused Bishnu
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Prasad and others. The learned Trial Court had then taken
cognizance of the offences under Sections 366(A), 370, 370(A),
376, 212, 109, 420/120(B) of the IPC, Sections 4, 8 and 17 of the
POCSO Act and Sections 4, 5 and 6 of the Act, 1956 against all
the aforesaid six appellants vide order dated 22.04.2016. The
charges were then framed by the learned Trial Court, vide order
dated 06.09.2016 against the aforesaid six appellants under
various provisions of law, details whereof are as under:-
Cr. Appeal (DB) No. 224 of 2019
Appellant’s name Charges framed under Section
Rajballabh Prasad 109 IPC read with Section 376, 120(B) of the IPC,
@ Rajballav Yadav
Sections 4, 8, 17 of the POCSO Act, 2012 and
Sections 5 and 6 of the Act, 1956Cr. Appeal (DB) No. 165 of 2019
Appellant’s name Charges framed under Section
Sulekha Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section
4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
Cr. Appeal (DB) No. 200 of 2019
Appellant’s name Charges framed under Section
Radha Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section
4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
Cr. Appeal (DB) No. 218 of 2019
Appellant’s name Charges framed under Section
Sandeep Suman @ 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section
Pushpanjay 4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Cr. Appeal (DB) No. 226 of 2019
Appellant’s name Charges framed under Section
Tusi Devi 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section
4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
Cr. Appeal (DB) No. 243 of 2019
Appellant’s name Charges framed under Section
Chhoti Devi @ 109, 212, 366A, 370, 376/ 120(B) of the IPC, Section
Amrita
4, 8, 17 of the POCSO Act, 2012 and Section 4, 5 and
6 of the Act, 1956.
6. The connected case, after constitution of the Special
Court in light of the notification No. 2574 dated 14.03.2018,
issued by the law department, was transferred from the Ld. Court
of 1st Additional District and Sessions Judge-cum-Special Judge
Nalanda at Biharsharif and received by the learned Special Judge
(Elected Member of Parliament, Member of Legislative
Assembly and Member of Legislative Council), Bihar, Patna on
04.06.2018, whereafter the same was numbered as Special Case
No. 145 of 2018. During the course of trial, 22 prosecution
witnesses were examined. PW-1 is the sister of the prosecutrix,
PW-2 is the prosecutrix herself (victim girl), PW-3 is the sister of
the victim girl, PW- 4 is the father of the victim girl, PW-5 is
Rajeshwar Ram (Assistant Sub-Inspector of Police), PW-6 is
Manju Yadav (Assistant Sub-Inspector of Police), PW-7 is
Gandhari Devi (Sub-Inspector of Police), PW-8 is Dr. Shailendra
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Kumar (Member of the Medical Board), PW-9 is Dr. Budha
Prakash (Orthopaedic surgeon and Member of Medical Board),
PW-10 Dr. Akhilesh Kumar (Dental Surgeon & Member of the
Medical Board), PW-11 is Dr. Kumkum Kumari (Lady Medical
officer and Member of the Medical Board), PW- 12 is Dr. Ram
Kumar Prasad (Pathologist and Member of the Medical Board),
PW-13 is Dr. Kumari Preeti Ranjana (Lady Medical officer and
Member of the Medical Board), PW-14 is Alok Kumar
(Assistant posted in the residential office of Superintendent of
Police in the District Information Unit, Nalanda), PW-15 is
Mridula Kumari (Investigating Officer), PW-16 is Bipin Kumar
Choudhary (In-charge Director, State Photo Bureau Criminal
Investigation Department, Bihar, Patna), PW-17 is Raj Kumar
Bharti (Posted as Government Photograph Examiner in the
office of State Photo Bureau, CID, Bihar), PW- 18 is Reshma
Verma (learned Sub-Judge-IV-cum-ACJM-III, Biharsharif, who
had recorded the statements of PW-1, PW-2 and PW-3 under
Section 164 of the Cr.P.C.), PW-19 is Swarn Prabhat (learned
Munsif-cum-J.M. 1st Class, who had recorded the statement of
PW-4 under Section 164 of the Cr.P.C.), PW-20 is Devanand
Kumar (Nodal Officer of Vodaphone), PW-21 is Vimal Kumar
Shrivastava (Nodal Officer of Idea Cellular Ltd.) and PW- 22 is
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Javed Akhtar (Nodal Officer of Bharti Airtel Ltd. Patna).
7. The prosecution, by way of documentary evidence, had
proved the following documents, which were marked as exhibits
during the course of the trial:-
Exhibits Description
Exhibit-1 Written Report (FIR)
Exhibit-1/a Signature of the Prosecutrix on the written
statement (FIR)
Exhibit-1/b Signature of PW-1 on the written report (FIR)
Exhibit-1/c Signature of PW-4 on the written report (FIR)
Exhibit-2 Signature of PW-1 on the earlier statement
recorded under section 164 Cr.P.C.
Exhibit-2/a Signature of Prosecutrix on the earlier statement
recorded under section 164 Cr.P.C.
Exhibit-3 Provisional Certificate of Matriculation of
Prosecutrix.
Exhibit-2/b Statement of PW-3 recorded U/s. 164 Cr.P.C.
Exhibit-2/c Signature of PW-3 on the statement recorded
under section 164 Cr.P.C.
Exhibit-2/d Statement of PW-4 recorded under section 164 Cr.
PC.
Exhibit-4 Medical Report of the Prosecutrix.
Exhibit-4/a Signature of the witness Dr. Buddh Prakash on the
Medical Report of the Prosecutrix.
Exhibit-4/b Signature of Dr. Akhilesh Kumar on the Medical
Report of the Prosecutrix.
Exhibit-4/c Signature of Dr. Kumkum Kumari and Dr.
& 4/d Kumari Prity Ranjana respectively on the Medical
Report of the Prosecutrix.
Exhibit-4/e Signature of Dr. Shailendra Kumar and Civil
& 4/f Surgeon - cum - CMO respectively on the
Medical Report of the Prosecutrix.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Exhibit-4/g Signature of the witness Dr. Ram Kumar Prasad
on the Medical Report of the Prosecutrix.
Exhibit-5 Memo. 163, Form- IV, Exhibit 107/16 Dated
12.03.2016
Exhibit-5/a Initials of witness Alok Kumar on Memo. 163,
Form- IV, Exhibit 107/16 Dated 12.03.2016
Exhibit-5/b Signature of Incharge Officer Jyoti Prakash on
Memo. 163, Form- IV, Exhibit 107/16 dated
12.03.2016
Exhibit-6 Memo. 168, Form-IV, Exhibit 108/16 dated
01.04.2016
Exhibit-6/a Initials of witness Alok Kumar on Memo. 168,
Form-IV, Exhibit 108/16 dated 01.04.2016
Exhibit-6/b Signature of A.S.P. Operation Vibhash Kumar on
Memo. 168, Form- IV, Exhibit 108/16 dated
01.04.2016
Exhibit-Y to Form- IV along with CAF of 5 Mobile Numbers
Y/9 in total 10 Pages
Exhibit-7 Analysis Report bearing initials of witness Alok
Kumar (Page No. – 107).
Exhibit-7/a, Analysis Report (Page – 108,109,110,111)
7/b,7/c,7/d
Exhibit-1/d Registration order of witness Mridula Kumari on
Written Report (FIR)
Exhibit-8 Entire Formal FIR
Exhibit-9 Search – cum – Seizure List
Exhibit-10 Chart dated 16.02.2016 of Collected Articles
prepared by the Forensic Expert.
Exhibit-11 Production - cum - Seizure List
Exhibit-12 Signature of the witness Mridula Kumari on the
seizure list dt. 26.2.2016 prepared by FSL team.
Exhibit-13 Letter No. 220 / Photo dated 22.08.2016 issued by
the State Photo Bureau CID, Bihar, Patna
Exhibit-14 Signature of the IO Mridula Kumari and DIO
Alok Kumar on the undertaking which has been
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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countersigned by the Incharge Director Vipin
Kumar and contains his signature.
Exhibit-15 Application dt. 16.3.2016 of Witness-17 which is
in his handwriting and bears his signature.
Exhibit-2/e Entire Statement of the Prosecutrix recorded
under section 164 Cr.P.C.
Exhibit-2/f Entire Statement of PW-1 recorded under section
164 Cr.P.C.
Exhibit-2/g Entire Statement of PW-3 recorded under section
164 Cr.P.C.
Exhibit-2/h Entire Statement of PW-4 recorded under section
164 Cr.P.C.
Exhibit-16 Certificate submitted by the Nodal Officer,
Vodafone Mobile Service under section 65 (B)(4)
(C) of Indian Evidence Act.
Exhibit-17 Entire CAF of Mobile No.: 8298800821 issued by
Vodafone Mobile Service
Exhibit-17/a Entire CAF of Mobile No.: 8298800821 issued by
Vodafone Mobile Service along with Photocopy
of the Aadhar Card (Identity Card) of Tusi Devi
Exhibit-18 CDR of Mobile No.: 8298800821 issued by
Vodafone Mobile Service
Exhibit-19 Certificate of the Nodal Officer, Idea Company
submitted in respect of Mobile No.: 8651305263
under section 65- B of Indian Evidence Act.
Exhibit-19/a Certificate of the Nodal Officer, Idea Company
submitted in respect of Mobile No.: 9708019722
under section 65- B of Indian Evidence Act.
Exhibit-20 CAF issued by the Idea Company against SIM
No.: 89917020031197777008, Mobile No.:
8651305263 in the name of Tusi Devi.
Exhibit-20/a CAF issued by the Idea Company against SIM
No.: 89917020031197777008, Mobile No.:
8651305263 in the name of Tusi Devi along with
Photocopy of the Voter ID Card of Tusi Devi.
Exhibit-21 CAF issued by the Idea Company against SIM
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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9708019722 in the name of Surendra Singh.
Exhibit-21/a CAF issued by the Idea Company against SIM
No.: 8991709006159197915, Mobile No.:
9708019722 in the name of Surendra Singh along
with Photocopy of the Voter ID Card of Surendra
Singh.
Exhibit-22 CDR (1-2-16 to 12-2-16) issued by Idea Company
for Mobile No.: 8651305263
Exhibit-22/a CDR (1-1-16 to 12-4-16) issued by Idea Company
for Mobile No.: 9708019722
Exhibit-23 Certificate of the Nodal Officer, Bharti airtel Ltd
submitted under section 65 (B) of Indian
Evidence Act.
Exhibit-24 CAF issued by the Bharti Airtel Company against
SIM No.: 89915231100010342022, Mobile No.:
9162246321 in the name of Raj Ballabh Prasad.
Exhibit-24/a CAF issued by the Bharti Airtel Company against
SIM No.: 89915231100010342022, Mobile No.:
9162246321 in the name of Raj Ballabh Prasad
along with Photocopy of Voter ID Card of Raj
Ballabh Prasad.
Exhibit-25 CAF issued by the Bharti Airtel Company against
SIM No.: 89915241000043314808, Mobile No.:
8084898313 in the name of Vishnu Kumar.
Exhibit-25/a CAF issued by the Bharti Airtel Company against
SIM No.: 89915241000043314808, Mobile No.:
8084898313 in the name of Vishnu Kumar along
with Photocopy of Driving License (Identity
Card) of Vishnu Kumar.
Exhibit-26 CAF issued by Bharti Airtel Company against
SIM No.: 89915221100082271259, Mobile No.:
9801848312 in the name of Sulekha Devi.
Exhibit-26/a CAF issued by the Bharti Airtel Company against
SIM No.: 89915221100082271259, Mobile No.:
9801848312 in the name of Sulekha Devi along
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
18/315with Photo Copy of Voter ID Card of Sulekha
Devi.
Exhibit-27 CAF issued by Bharti Airtel Company against
SIM No.: 89915231100054674739, Mobile No.:
9162857459 in the name of Sulekha Devi.
Exhibit-27/a CAF issued by the Bharti Airtel Company against
SIM No.: 89915231100054674739, Mobile No.:
9162857459 in the name of Sulekha Devi along
with Photo Copy of Voter ID Card of Sulekha
Devi.
Exhibit-28 CDR (Total 21 Pages) issued by Bharti Airtel
Company against Mobile No.: 9162246321.
Exhibit-29 CDR (Total 11 Pages) issued by Bharti Airtel
Company against Mobile No.: 9162857459.
Exhibit-30 CDR (Total 10 Pages) issued by Bharti Airtel
Company against Mobile No.: 8084898313.
Exhibit-31 CDR (Total 06 Pages) issued by Bharti Airtel
Company against Mobile No.: 9801848312.
Material D.V.D of Mobile and CAF
Exhibit - I
Material Memory card of Videography
Exhibit - II
Material Memory Card
Exhibit -
II/a to II/f
Material List of 07 C.D. prepared by Vipin Chaudhary.
Exhibit - III
8. During the course of trial, the learned trial court had also
recorded the statement of defence witnesses. DW-1 is Umed
Singh Yadav, DW-2 is Vinay Kumar Ranjan, DW-3 is Hari
Shankar Singh, DW-4 is Kailash Prasad Yadav, DW-5 is Ram
Ratan Singh, DW- 6 is Prashant Rai, DW- 7 is Upendra Kumar,
DW- 8 is Ashok Kumar, D.W. 9 is Prakash Veer, DW-10 is Anil
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
19/315Mehta, DW-11 is Bhante Jambudeep @ Lalan Manjhi, DW- 12
is Dinesh Kumar Akela, DW-13 is Rajesh Kumar, DW-14 is
Prakash Kumar Singh and DW-15 is Rajeev Ranjan Kumar.
9. The list of exhibits marked on behalf of the defence are
enumerated herein below:-
Exhibits Description
Exhibit-A. Photocopy of Search-cum-seizure list dated
13.02.2016.
Exhibit-A/1. Signature of witness Upendra Kumar on the
photocopy of Search-cum-seizure list dated
13.02.2016.
Exhibit-A/2. Signature of witness Praveen Kumar on the
photocopy of Search-cum-seizure list dated
13.02.2016.
Exhibit-B. Signature of witness Anil Mehta on appointment
of Polling Agent 237 (for) election for Nawada.
Exhibit-C to Documents issued by Public Information Officer,
C/30. Nawada related to Daman Virodhi Sarvadaliya
Sangharsh Morcha Nawada (Total 31 pages).
Exhibit-D to Certified copy of letter sent to District Officer-
D/5. cum-Collector, Nawada (Daman Virodhi
Sarvadaliya Sangharsh Morcha, Nawada) dated
2.2.12, 22.3.12, 27.3.12, 8.5.12, 19.3.12, 10.2.12
Exhibit-E Certificate filed u/s 65(B) of the Evidence Act by
witness Rajesh Kumar.
Exhibit-F to All eight photographs (Material Exhibit).
F/7.
Exhibit-G. 16 G.B. chip of Sand Disk Company (Material
Exhibit).
Exhibit-H. Application dated 02.03.2017 filed by the Special
Public Prosecutor.
Exhibit-I. Letter dated 23.01.2017 sent by Nodal Officer,
Reliance Communication Limited
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Exhibit-J to C.D.R. of Mobile No.- 7856940431 sent by
J/5. Nodal Officer, Reliance Communication Limited.
(06 pages)
Exhibit-K to C.D.R of Mobile No.- 9798206864 sent by Nodal
K/3. Officer, Reliance Communication Limited. (04
pages)
Exhibit-L to C.A.F. of Mobile No. 7856940431 sent by Nodal
L/1. Officer, Reliance Communication Limited and
Election Identity Card (total 2 pages)
Exhibit-M. Letter dated 09.02.2017 sent by Nodal Officer,
Reliance Communication Limited.
Exhibit-N. Certificate u/s 65B (4) (c) of Evidence Act, 1872
dt. 17.4.2017 submitted by Prakash Kr. Singh,
Nodal Officer, Reliance Communication Limited
Exhibit-O. Statement of Jitendra Kumar recorded on
19.03.2017 under Section 164 Cr.P.C.
Exhibit-P. Signature of Dr. Krishna on the photocopy of Dr.
Krishna’s application sent to the Under Secretary,
Health Department, Bihar, Patna.
Exhibit-P/1. Signature of Dr. Krishna on the photocopy of the
application dated 19.02.2016 sent by Dr. Krishna
to the Principal Secretary, Health Department,
Government of Bihar.
Exhibit-Q. Certified copy of the Final Report of Nawada
Town P.S. Case No. 211/2006.
Exhibit-Q/1. Certified copy of Order Sheet of Nawada Town
P.S. Case No. 211/2006.
Exhibit-R. Certified copy of the Order Sheet of Nawada
Town P.S. Case No. 156/2010
Exhibit-R / 1. Certified copy of the Final Report of Nawada
Town P.S. Case No. 156/2010.
Exhibit-S. Certified copy of Order Sheet of Nawada Town
P.S. Case No. 425/2010.
Exhibit-S / 1. Certified copy of Final Form/Report of Nawada
Town P.S. Case No. 425/2010.
Exhibit-T. Certified copy of Order sheet and Order of
Criminal Revision No. 12/2007.
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Exhibit-U. Certified copy of Order Sheet of Nawada
Mufassil P.S. Case No. 95/2004.
Exhibit-U/1. Certified copy of Final Form/Report of Nawada
Mufassil P.S. Case No. 95/2004.
Exhibit-V. Certified copy of Order Sheet of Sheikhpura,
Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-V/1. Certified copy of F.I.R. of Sheikhpura,
Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-V/2. Certified copy of Final Report of Sheikhpura,
Sheikhopur Sarai P.S. Case No. 16/2014.
Exhibit-W. Certified copy of Order Sheet of Hisua P.S. Case
No. 194/2012.
Exhibit-W/1. Certified copy of Final Form/Report of Hisua P.S.
Case No. 194/2012.
Exhibit-X. Certified copy of Order Sheet of Nardiganj P.S.
Case No. 133/2015.
Exhibit-X/1. Certified copy of FIR of Nardiganj P.S. Case No.
133/2015.
Exhibit-Y. Certified copy of Final Form/Report of Nawada
Town P.S. Case No. 111/2009.
Exhibit-Z to Information received under Right to Information
Z/I. Act 2005 from the Office of Superintendent of
Police, Nalanda vide Memo No. 1571/ र० क०,
Bihar Sharif dated 22.04.2017
Exhibit-Z/II. Inspection report of Place of Occurrence.
Exhibit- Copy of Summons issued against Vinod Kumar.
Z/III.
Exhibit- Copy of service of summons issued against
Z/IV. Surendra Kumar Upadhyay @ Surendra Pandit.
Identificatio Signature of Dr. Smt. Krishna on the photocopy
n Mark-X. of the letter dated 02.05.2016 sent to the Under
Secretary, Health Department, Bihar, Patna
(Marked for Identification).
10. Shri Surendra Singh, Senior Advocate, assisted by Shri
Rajeev Kumar Singh, Senior Advocate as also Shri Gopal Bohra
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and Shri Sumit Kumar, Advocates have appeared for the
appellant of the first case, namely, Rajballabh Prasad @
Rajballabh Yadav. The learned Senior Counsel appearing for the
appellant of Criminal Appeal (D.B.) No. 224 of 2019 (herein
after referred to as the “appellant of the first case”), has taken us
through the sequence of events as narrated by the prosecutrix in
her written report dated 09.02.2016 and has then read her
evidence, adduced as PW-2. It is stated that the written report
filed by the prosecutrix has been scribed by PW-1 and the same
has been signed by the prosecutrix, PW-1 and her father i.e. PW-
4, which is the basis of registration of the aforesaid F.I.R. in
question, i.e. Mahila (Nalanda) P.S. Case No. 15 of 2016. It is
submitted that the prosecutrix was sent for medical examination
to Dr. Krishna on 09.02.2016, however the same has been
suppressed by the prosecution and moreover, the said Dr.
Krishna has also been withheld as a witness as also she has
remained unexamined. Reference has been made to the medical
report dated 17.02.2016, submitted by the Medical Board under
the chairmanship of Civil Surgeon-cum-Chief Medical Officer,
Nalanda, which had examined the prosecutrix and it has been
submitted that therein no injury has been found on the private
parts of the prosecutrix, the vagina is stated to have admitted two
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fingers easily, hymen has been found to be old ruptured, no
injury has been found inside the vagina and the Medical Board
has opined as follows:-
“On the basis of the above physical, dental, radiological
and pathological examination, the Board is of the opinion
that the age of the prosecutrix is in-between 16-17 years
and rape cannot be ruled out.”
11. Thus, it is submitted by the learned Senior counsel for the
appellant of the first case that the prosecutrix was not a virgin
and was used to sexual intercourse as also no injuries have been
found on her private parts. It is further submitted that Dr. Smt.
Krishna, Lady Medical Officer, Sadar Hospital, Biharsharif, who
is stated to have conducted the medical examination of the
prosecutrix on 09.02.2016 had made a complaint before the
Additional Secretary, Health Department, Bihar, Patna vide letter
dated 02.05.2016, stating therein that she was being pressurized
to change the medical report.
12. It is next submitted that though the police had gone to
Giriyak but the house as described by the prosecutrix could not
be found on 10.02.2016. On 11.02.2016, the prosecutrix is again
stated to have been taken by the police party to Pathra English
where the prosecutrix had identified the house of the appellant of
the first case and had also found him strolling in his house,
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whom the prosecutrix had identified. It is thus submitted that it
is intriguing as to why PW-15 Mridula Kumari, Town Inspector,
who was though present at the said place, had not arrested the
appellant of the first case, though she was bound to do so U/s. 41
of the Cr.P.C. In fact, no offence was registered at that time
against the appellant of the first case, however on 14.02.2016,
search and arrest warrant was obtained from the Ld. trial court
by the police and then the police had left for the house of the
appellant of the first case for investigation, however there is no
entry about the same in the station diary at the police station. It is
stated that on 17.02.2016, the Civil Surgeon had constituted a
Medical Board to examine the prosecutrix, which had though
found the age of the prosecutrix to be in between 16-17 years but
no injuries were found either on the private parts or inside the
vagina or otherwise on the body of the prosecutrix, rather the
Medical Board had found that her hymen was old ruptured and
her vagina admitted two fingers easily.
13. The learned senior counsel for the appellant of the first
case has further stated that there is no proof of the fact that the
prosecutrix is below 18 years of age, hence the provisions of the
POCSO Act are not applicable. It is also stated that medical
evidence negates the case of the prosecution and there is no
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proof of commission of rape of the prosecutrix by the appellant
of the first case. It is submitted that the conviction of the
appellant of the first case is based on the solitary testimony of
the prosecutrix, which is neither credible nor trustworthy and full
of contradictions, improbabilities and omissions as also is
contrary to the medical evidence on record. Thus, it is submitted
that in case this Court holds that sexual intercourse had taken
place in between the prosecutrix and the appellant of the first
case, then it would be a natural corollary that the prosecutrix was
a consenting party. It is next submitted that evidence has also
been led by the defence to show that the appellant of the first
case was not present in the aforesaid house (place of occurrence)
in between 11:30 P.M. to 4:00 A.M. of the intervening night of
06/7.02.2016, thus the plea of alibi of the appellant of the first
case in the present case would also be a relevant consideration.
14. Now, coming to the provisional certificate of the
prosecutrix dated 29.05.2016, issued by the Bihar School
Examination Board, Patna regarding the Secondary School
Examination, 2016, which has been produced by the prosecution
during the course of trial and has been marked as Exhibit-3,
wherein the date of birth of the prosecutrix has been shown to be
04.01.2000, it is submitted that since the said document was
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marked as Exhibit with objection, the same was required to be
proved by its maker, however neither the maker of the said
certificate has proved the same nor the signature put over the
said certificate has been proved, thus the said document is
required to be excluded and cannot be considered by this Court.
In this regard, reference has been made to a judgment rendered
by the Hon’ble Apex Court in the case of Narbada Devi Gupta
vs. Birendra Kumar Jaiswal and Anr., reported in (2003) 8
SCC 745 to submit that the Hon’ble Apex Court has held in
paragraph no. 16 thereof that mere production and marking of a
document as exhibit by the Court cannot be held to be a due
proof of its contents and its execution has to be proved by
admissible evidence, i.e. by the evidence of those persons who
can vouchsafe for the truth of the fact in issue. Reference has
also been made to a judgment rendered by the Hon’ble Apex
Court in the case of Neeraj Dutta vs. State (Government of
NCT Delhi), reported in AIR 2023 SC 330 to submit that the
Hon’ble Apex Court has held in paragraph no. 60 thereof that
when a document is produced as primary evidence, it will have
to be proved in the manner laid down in Sections 67 to 73 of the
Indian Evidence Act and mere production and marking of a
document as an exhibit by the Court cannot be held to be due
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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proof of its contents as also its execution has to be proved by
admissible evidence. In this connection, reference has also been
made to a judgment rendered by the Hon’ble Apex Court in the
case of H. Venkatachala Iyengar vs. B.N. Thimmajamma &
others, reported in AIR 1959 SC 443 to submit that the Hon’ble
Apex Court has held in paragraph no. 18 thereof that under
Section 67 of the Indian Evidence Act, if a document is alleged
to be signed by any person, the signature of the said person must
be proved to be in his hand writing and for proving such a hand
writing U/s. 45 and 47 of the Indian Evidence Act, the opinion of
experts and of persons acquainted with the hand writing of the
person concerned are relevant.
15. The learned senior counsel for the appellant of the first
case has next contended that the first and foremost requirement
for application of POCSO Act is that the alleged victim was a
child below 18 years of age on the date of occurrence and it is
the prosecution which is required to prove the minority of the
victim for application of POCSO Act qua the accused/
appellants. The prosecution is required to prove the foundational
facts of the alleged offence to raise presumption under Sections
29 and 30 of the POCSO Act. It is submitted by referring to a
judgment dated 30.10.2024 rendered by the learned Division
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Bench of this Hon’ble Court in Criminal Appeal (DB) No. 550
of 2021, that the procedure provided for determination of age of
a juvenile/child in conflict with law should be adopted for
determination of the age of the victim of a crime also, because
there is hardly any difference insofar as the issue of minority is
concerned between the child in conflict with law and the child
who is the victim of a crime. In this connection, reference has
also been made by the learned senior counsel to a landmark
judgment rendered by the Hon’ble Apex Court in the case of
Jarnail Singh vs. State of Haryana, reported in (2013) 7 SCC
263 as also to the one rendered by the Hon’ble Apex Court in the
case of P. Yuvaprakash vs. State, reported in (2023) SCC online
SC 846, wherein Section 34 of the POCSO Act and Section 94
of the Juvenile Justice (Care and Protection of Children) Act,
2015 (hereafter referred to as the “JJ Act“) has been discussed. It
is thus submitted that in the present case since the age certificate
of the prosecutrix i.e. the provisional certificate issued by the
Bihar School Examination Board, Patna has not stood proved on
account of the reasons mentioned herein above and since the
requirement of law for proving the same have not been complied
with, the only other way to determine the age of the prosecutrix
is ossification test.
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16. As far as the present case is concerned, neither there is
any proof that the x-ray plates of the prosecutrix were produced
before the Medical Board, especially those pertaining to the
prosecutrix nor the prosecutrix has anywhere said that her x-rays
were taken, thus the fact is that no ossification test of the
prosecutrix was ever conducted. In this regard, the evidence of
PW-8 Dr. Shailendra Kumar has been referred to, wherein he has
stated that x-ray was done by I.G.E.M.S, Biharsharif on
09.02.2016, the day on which the prosecutrix was examined by
Dr. Krishna. Evidence of P.W. 9 Dr. Budha Prakash, Orthopedic
Surgeon, has also been referred to and it has been submitted that
he has categorically stated that ossification test had not taken
place. Even otherwise it is submitted that the Medical Board has
found the age of the prosecutrix to be in between 16 to 17 years,
however, it is a settled principle of law that radiological
examination leaves a margin of two years on either side of the
age range. In this connection, reference has been made to a
judgment rendered by the Hon’ble Apex Court in the case of
Vinod Katara vs. The State of Uttar Pradesh, reported in AIR
2022 SC 4771 to contend that the Hon’ble Apex Court has held
in paragraph no. 58 thereof that bone ossification test is not an
exact science that can provide us with the exact age of the person
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and the individual characteristic such as the growth rate of bones
and skeletal structure can affect the accuracy of this method,
hence the ossification test is not conclusive for age
determination because it does not reveal the exact age of the
person but the radiological examination leaves a margin of two
years on either side of the age range as prescribed by the test
irrespective of whether the ossification test of multiple joints is
conducted. Thus, it is submitted that in the present case if two
years are added to either 16 or 17, the prosecutrix would
definitely be a major. In this connection, reference has been
made to the report of Medical Board dated 17.02.2016 to submit
that x-ray of both the wrist, joint (AP view) shows that epiphyses
is in the process of fusion whereas x-ray of both elbow joint (AP
view), knee joint (AP view) shows that all epiphyses are fused,
however, upon examination of x-ray of pelvis, iliac crest appears
to have not been fused. Thus, it is submitted that the same would
also show that the prosecutrix is more than 19 years of age.
Therefore, it is the submission of the learned senior counsel for
the appellant of the first case that in absence of any proof that
the prosecutrix is below the age of 18 years, the provisions of the
POCSO Act would not apply. The learned senior counsel for the
appellant of the first case has further submitted that the medical
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evidence i.e. the report of the Medical Board dated 17.02.2016
completely rules out the possibility of rape.
17. Now, coming to the evidence of the prosecutrix, it is
submitted by the learned senior counsel for the appellant of the
first case that though it is a settled law that in a case of rape, the
evidence of a prosecutrix is of the same value as that of an
injured witness and conviction can be made on the basis of the
sole testimony of the prosecutrix, however it is equally a well
settled law that the Courts have to be extremely careful while
examining the sole testimony of the prosecutrix and in case the
same inspires confidence in the mind of the Court, the accused
can be convicted on the basis of sole testimony of the
prosecutrix, however if the version given by the prosecutrix is
unsupported by any medical evidence or the whole surrounding
circumstances are highly improbable and belie the case set up by
the prosecutrix, the Court shall not act on the solitary evidence
of the prosecutrix. In this connection, reliance has been placed
on a judgment rendered by the Hon’ble Apex Court in the case
of Manak Chand @ Mani vs. The State of Haryana, reported in
AIR 2023 SC 5600. It is also submitted that in case medical
evidence does not support the case of the prosecution relating to
offence of rape, the sole testimony of the prosecutrix ought to be
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discarded. Reliance in this connection has been made to a
judgment rendered in the case of Sham Singh vs. State of
Haryana, reported in AIR 2018 SC 3976.
18. The learned senior counsel for the appellant of the first
case has next referred to the written report of the prosecutrix
dated 09.02.2016 to submit that the same has been exhibited as
Exhibit-1, which has been written by PW-1 and signed by the
prosecutrix and her father as also to the evidence of PW-2 i.e. the
prosecutrix, especially paragraphs no. 10 to 38, 43 and 49 to 57
thereof, to demonstrate that there are material contradictions and
inconsistencies in the testimony of PW-2, thus the same is
untruthful and not liable to be relied upon. The testimony of PW-
1, PW-2 and PW-3 has also been referred to by the learned
senior counsel for the appellant of the first case to show that the
conduct of the said three girls would demonstrate that either the
prosecutrix had not left the house or she had ventured out for the
purposes of engaging in prostitution.
19. The learned senior counsel for the appellant of the first
case has also referred to the evidence of PW-15 Mridula Kumari,
i.e. the Investigating Officer of the present case and it has been
submitted that she has stated in her cross-examination that no
entry was made in the station diary while leaving or coming
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back to the police station as also at the time of inspecting the
place of occurrence. In fact in paragraph no. 73 of her cross-
examination, PW-15 has stated that on 12.2.2016 she had
received the medical examination report issued by Dr. Krishna
upon examining the prosecutrix on 09.02.2016, which has been
mentioned in the case diary and it has been stated therein that x-
ray has been handed over to the police but along-with the
medical report no x-ray plate was given to her, hence she had
made a complaint before the lady doctor, whereafter she had
perused the said medical report, wherein it has been stated that
there is no evidence of forceful sexual intercourse and the doctor
had found the victim to be used to sex. Thus, it is submitted that
there is no medical evidence available on record to suggest that
rape was committed with the prosecutrix.
20. The learned senior counsel for the appellant has next
referred to paragraph no. 82 of the cross-examination of PW-15
to submit that PW-15 had interrogated the appellant of the first
case, wherein he had said that on 06.02.2016 at about 10:41 P.M.
in the night he had gone to the TMC Guest House where
Manager of the said guest house namely Umed Singh Yadav, his
brother-in-law, namely Vinay Kumar Ranjan and I.A.S. Officer
of the State of Jharkhand, namely Manoj Kumar were present
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and there meeting had continued for two hours, whereafter at
about 12:45 A.M. in the night, he had gone to Nawada and after
half an hour he had reached at Barahgania pyne (big drain) and
remained there for half an hour for the purposes of supervising
cleaning of the drain, whereupon he had reached the old guest
house via old jail where also he had stayed for half an hour and
had met one Surendra Pandit and then in the morning at about
5:00 A.M. he had returned back to his residence at Pathra
English. Thus, it is submitted by the learned senior counsel that
admittedly the appellant of the first case was not present in the
intervening night of 06/07.2.2016 at Pathra English, hence there
was no question of having committed rape with the prosecutrix.
21. The learned senior counsel for the appellant of the first
case has submitted that though on 11.02.2016 itself the
prosecutrix had recognized the appellant of the first case taking
a stroll in his house as also had recognized the house in question
where the aforesaid incident had taken place but the police had
neither made any effort to arrest him from the spot or thereafter
as also had not obtained arrest warrant immediately, although it
is mandatory for the police to have arrested the appellant of the
first case on 11.02.2016 itself under Section 41 of the Cr.P.C. It
is thus submitted that the failure on the part of the police to take
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any step to arrest or cause the arrest of the accused at the earliest
without any explanation makes the case of the prosecution
doubtful. In this connection, reference has been made to a
judgment rendered by the Hon’ble Apex Court in the case of
Mohanlal Gangaram Gehani vs. State of Maharastra, reported
in AIR 1982 SC 839 and the one rendered in the case of State of
UP vs. Sukhbasi & Ors., reported in AIR 1985 SC 1224. Thus,
summing up the submissions on behalf of the appellant of the
first case, the learned senior counsel for the appellant of the first
case has submitted that; firstly the prosecutrix was not below the
age of 18 years, hence POCSO Act will not be applicable in the
present case; secondly no medical evidence is on record to show
that sexual intercourse had taken place in between the
prosecutrix and the appellant of the first case; thirdly if at all any
sexual intercourse had taken place, it had taken place with the
consent of the prosecutrix; fourthly though the prosecutrix had
identified the appellant of the first case on 11.02.2016, but he
was not arrested, hence a false case has been set up; fifthly the
appellant of the first case has a cast iron of plea of alibi and
lastly the Investigating Officer has not carried out the
investigation properly. It is also submitted that PW-7 and PW-
15 have though stated in paragraphs no. 10 & 62 that they had
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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used the police vehicle, after calling for the same from the police
line, for the purposes of investigation on 10/11.2.2016, however
it is the submission of the learned senior counsel for the
appellant of the first case by referring to Defence Exhibit No. Z
and Z/1 (R.T.I information obtained from the police line) that in
between 09.02.2016 to 16.02.2016, no vehicle was given for
conducting investigation of the present case.
22. The learned counsel appearing for the appellants of the
second case, namely Sulekha Devi (herein after referred to as the
Appellant No.2), third case namely Radha Devi (herein after
referred to as the Appellant No.3) and sixth case, namely Chhoti
Devi @ Amrita (herein after referred to as the Appellant No.6),
Mr. Ajay Kumar Thakur, assisted by Mrs. Vaishnavi Singh, Mr.
Ritwik Thakur and Mr. Ritwaj Raman, learned counsels has at
the outset, though adopted the arguments made by the learned
senior counsel appearing for the appellant of the first case but
has in addition stated that a bare perusal of the C.D.R. (call
detail records) of the mobile of the appellant No. 2 would show
that the tower location was found to be at Bakhtiyarpur and
neither at Nalanda nor at Nawada and in this connection, the
evidence of PW-14 has been referred to. It is also submitted that
the prosecutrix cannot be said to be a sterling witness, inasmuch
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as there are several contradictions in between her version as
recorded in her written report, the statement made by her under
Section 164 Cr.P.C. before the learned Magistrate and her
deposition as PW-2, especially since contents of all the three are
varying from each other. It is submitted that it is a well settled
law that if a witness is not consistent, no reliance is required to
be placed upon the testimony of such a witness. It is contended
that there is delay in lodging the FIR, inasmuch the occurrence
had taken place in the intervening night of 06/07.02.2016,
however, the FIR was lodged belatedly on 09.02.2016, which
further leads credence to the falsity of the prosecution story. The
materials on record would show that a plan was made to falsely
implicate the appellants and in fact the Biharsharif Police
Station, which is jurisdictional police station of the prosecutrix is
situated just outside the house of the prosecutrix, however
neither any information was given to it when the prosecutrix had
returned back to her house in the morning of 07.02.2016 nor
thereafter and in fact PW-1 to PW- 4 had gone belatedly to the
Mahila (Nalanda) Police Station for submitting the written
report. Thus, it is clear that a plan had been hatched to falsely
implicate the appellants.
23. Mr. Ajay Kumar Thakur, learned counsel for the
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appellants has further submitted that though the prosecutrix had
told her sister at the time of leaving her house on 06.02.2016 that
she would be back from the birthday party by 06:00 P.M.,
however when she had not returned back and was missing all
throughout the night, there is nothing on record to show that the
sisters of the prosecutrix has made any effort to trace the victim.
Thus, the same also further falsifies the prosecution version. It is
submitted that PW-2 (prosecutrix) has stated in paragraph no.
108 of her cross-examination that on 09.02.2016, when she had
reached the police station for lodging FIR, one Mridula Madam
had given her a paper to write her complaint, whereafter she had
written over the said paper and handed over the same to Mridula
Madam, whereupon she was immediately sent to the hospital.
Thus, it is submitted that the earliest version of the prosecutrix
furnished at the police station has been suppressed, which would
have revealed the actual incident.
24. It is next contended that though the clothes of the
prosecutrix was sent for F.S.L. examination, however the F.S.L.
report has not been brought on record by the prosecution. Thus,
adverse inference should be drawn. It is also stated that the Civil
Surgeon, Nalanda had though constituted the Medical Board by
writing a letter but neither the said letter has been exhibited nor
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the Civil Surgeon has been examined. It is next submitted that
though PW-3 has stated in her statement made under Section 164
Cr.P.C. before the learned Magistrate on 15.02.2016 that she had
not made any statement before the police regarding having
identified the third place of occurrence or the appellant of the
first case but subsequently, it has been stated that when she had
gone to the police station, she was shown the photograph of the
appellant of the first case and then she had recognized him to be
the perpetrator of the crime. It is also stated that even PW-4 in
his statement made U/s. 164 Cr.P.C. before the Ld. Magistrate on
15.2.2016 has not stated that either the prosecutrix had identified
the third place of occurrence or had identified the appellant of
the first case to be the perpetrator of crime.
25. Mr. Ajay Kumar Thakur, learned counsel for the
appellants has submitted that as far as the C.D.R. (call detail
records), marked as Exhibits-L and L-1 are concerned, the same
would show that the aforesaid Appellants No. 2, 3 and 6 had not
made any phone calls to the appellant of the first case on
06.02.2016. It is contended that as far as the C.D.R. of the
mobile of PW-1 of the date of 06.02.2016, for the period after
04:00 P.M. in the evening is concerned, she had received several
calls and out of the same ten calls were from mobile no.
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9709759015 as also the tower location of the said mobile
number was found to be situated in the district of Sheikhpura.
Thus, apparently something was amiss and there was abnormal
activity, hence definitely a false case has been cooked up. It is
also contended that a bare perusal of the CDR of the mobile
phones of PW-1 and PW-4 would show that no conversation had
taken place in between them either on 06.02.2016 or 07.02.2016
or 08.02.2016 and call records would show that only on
09.02.2016 in the morning, PW-4 had called PW-1 from his
native village, whereafter second call was made by PW-4 to PW-
1 around 10:00 A.M. in the morning of 09.02.2016 and the tower
location has been found to be in front of the Bihar Sharif
(Mahila) Police Station. Thus, it is submitted that it appears that
no such incident as has been alleged by the prosecution had ever
taken place, inasmuch as the call detail reports would show that
PW-1 had not informed her father about the incident in question,
although she had come to know about the same in the morning
of 07.02.2016. It is also submitted that the second call of PW-4
to PW-1 is around 10:21 A.M., however PW-1 to PW-4 had
arrived at the police station at 10:00 A.M. on 09.02.2016. It is
contended that though the prosecutrix had put her signature on
the written report but there is no mention that the same was read
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over to her and after finding the same to be correct, she had put
her signature, hence the same is fabricated. It is next stated that
though in the written report, the prosecutrix has disclosed about
the name of the husband of the appellant No. 2, i.e. Sulekha
Devi, however in her evidence as PW-2 adduced before the
learned Trial Court, she has said that she does not know the
name of the husband of the appellant No. 2. Thus, it is submitted
that the entire case of the prosecution is concocted.
26. Lastly, it is submitted that PW-3 has stated in her cross
examination that few days prior to the aforesaid incident in
question, they were invited to the house of Sulekha Devi for a
birthday party, however since they were not on good terms, they
had not gone to the house of Sulekha Devi, which contradicts the
factum regarding she having arrived at the house of PW-2 on
06.02.2016 and having taken PW-2 along with her for attending
a birthday party.
27. Shri Rajesh Kumar Singh, appearing for the appellant of
the 4th case, namely Sandeep Suman @ Pushpanjay (herein after
referred to as the Appellant No. 4) has submitted that the only
role attributable to the appellant of the 4 th case is that when the
prosecutrix had arrived along with Sulekha Devi and Chhoti
Devi at the house of Nani of Chhoti Devi at Bakhtiyarpur, he
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was also present there and then the Nani of Chhoti Devi had
served chicken to all of them and they had eaten chicken,
whereafter, Sulekha Devi, Chhoti Devi and one 8-10 years old
girl along with the prosecutrix had left the house of Nani of
Chhoti Devi by means of a Bolero vehicle and are stated to have
gone to Giriyak. It is submitted by the learned senior counsel for
the appellant No. 4 that neither he is named in the FIR nor in the
statement made by the prosecutrix under Section 164 Cr.P.C, and
his name has transpired in this case only in the statement of the
prosecutrix recorded U/s. 161 Cr.P.C. and in her deposition made
before the Ld. trial Court. However, there is no allegation of any
wrong having been committed by the said appellant.
28. It is further submitted by the learned senior counsel, Shri
Rajesh Kumar Singh that the police personnel i.e. PW-14 has
produced the call records, which were available at the office of
the Superintendent of Police, Nalanda and from perusal of the
same, it is apparent that on 06.02.2016 at 03:15 PM, the mobile
of Sulekha Devi was found to be out of the range of Biharsharif
Town mobile Tower. It is stated that after 06:13 PM on 6.2.2016,
no call was made by Sulekha Devi from her mobile. As far as the
mobile of the sister of Sulekha Devi is concerned, namely Tusi
Devi, the same was also not found within the range of the
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Nalanda and Nawada Mobile Tower. As far as the mobiles of the
appellant of the first case and Sulekha Devi are concerned, there
was no call in between the two on the intervening night of
06/07.02.2016. Now coming to the call detail records of mobile
phone of PW-1 and PW-4, it is submitted that before 09.02.2016,
no call had been made by either of them and they had talked
only on 09.02.2016, on which day the first call was made by
PW-4 to PW-1 at 06:52 AM and the second call was made at
10:21 AM whereas, it is claimed by PW-4 that they had reached
at the police station at 10:00 AM.
29. The Ld. senior counsel has tried to draw contradictions
from the statements of PW-1, PW-2, PW-3, PW-4, the fardbeyan
recorded in the present case, the written report of the prosecutrix,
statements made under Sections 161 and 164 Cr.P.C and has
submitted that varying statements have been made by the
witnesses, especially PW-1 to PW-4 regarding the persons who
had accompanied the prosecutrix from Biharsharif to
Bakhtiyarpur to Giriyak to Pathra English. It is submitted by
referring to paragraph no. 47 of the deposition of PW-2 and
paragraph no. 78 of the deposition of PW-15 that the police had
not taken the prosecutrix inside the house, where the alleged
incident is stated to have taken place, hence the place of
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occurrence has also not stood proved. Lastly it is submitted that
the incident had taken place on 06.02.2016, whereas the
matriculation examination is stated to have been held on
12.03.2016 and moreover, the certificate produced by the
prosecutrix in support of her age has also not stood proved.
Hence, it is submitted that as far as the appellant No. 4 is
concerned, he has got no role to play in the alleged incident.
30. Mr. Aaruni Singh, learned counsel appearing on behalf of
the appellant of the 5th case, Tusi Devi has submitted that the
prosecutrix was taken by Sulekha Devi and Chhoti Devi to
Bakhtiyarpur at the house of Nani of Chhoti Devi, where Tusi
Devi was also present and then chicken was served to them and
they had eaten chicken, whereafter Sulekha Devi, Chhoti Devi
and one 8-10 years old child along with the prosecutrix had left
for Giriyak in a Bolero vehicle. Thus, it is stated that as far as the
appellant No. 5 is concerned, neither any role in the alleged
occurrence has been attributed to her nor she had enticed the
prosecutrix nor she had accompanied her to Giriyak and onward
to Pathra English. It is further submitted that though it has been
alleged that Tusi Devi had talked with the appellant of the 1st
case, however in this connection the arguments advanced by Shri
Rajesh Kumar Singh, Ld. senior counsel appearing for the
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appellant No. 4, i.e. Sandeep Suman @ Pushpanjay, has been
adopted to submit that the call detail records would show that
there was no conversation in between the appellant No. 5 and the
appellant of the 1st case on the intervening night of 6/7.02.2016
and moreover, the mobile location of the said appellant was also
not found within the district of Nalanda and Nawada. It is further
submitted that there is delay of three days in lodging the FIR,
which is fatal to the present case. It is also contended that neither
the appellant No. 5 is named in the FIR nor in the statement
made by the witnesses under section 161 Cr.P.C. nor in the
statements made by PW-1 to PW-4 U/s. 164 Cr.P.C. and her
name has transpired only in the deposition of PW-1 and PW-2.
Thus, it is submitted that the appellant No. 5 is innocent and has
got no role to play in the alleged occurrence. In nutshell, it is the
submission of the Ld. counsel for the appellant No. 5 that no role
whatsoever, even that of hatching a conspiracy can be attributed
to appellant No. 5, thus she is required to be acquitted.
31. The learned A.P.P. for the State, Shri Dilip Kumar Sinha,
has submitted that a bare perusal of the written report and
deposition of the prosecutrix would show that firstly, the
prosecutrix was taken to Bakhityarpur at the house of the Nani
of Chhoti Devi and mother of Sulekha Devi, whereafter she was
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taken to Giriyak and then to a house situated nearby at Pathra
English and all these places of occurrence have been proved by
the Investigating Officer i.e. PW-15, Mridula Kumari. It is
further submitted by the learned APP for the State that PW-20,
PW-21 and PW-22 are nodal officers of Vodafone, Idea and
Airtel Mobile companies respectively, who have proved the call
detail records and the same have also been marked as material
exhibits. It is submitted that the evidence of PW-2 and the
provisional matriculation certificate produced by PW-2, which
has been marked as Exhibit-3, is conclusive proof of the age of
the prosecutrix as also the same shows that the prosecutrix was
minor on the date of occurrence, inasmuch as her date of birth is
04.01.2000 and even the Medical Board has found the age of the
prosecutrix to be in between 16-17 years of age.
32. As regards the adverse inference being drawn by the
defence with regard to non-arrest of the appellant of the first
case immediately after the prosecutrix had disclosed his identity,
it is submitted by the learned APP for the State that since he was
member of the Legislative Assembly, the Investigating Officer
was not in a position to arrest him, hence arrest warrant was
obtained from the Magistrate and then appropriate steps were
taken. The learned APP for the State has next referred to the
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report of the Medical Board to submit that even the Medical
Board has opined that possibility of rape cannot be ruled out and
reference in this connection has been made to the evidence of
PW-8, i.e. Dr. Shailendra Kumar. Reference has also been made
to the evidence adduced by PW-15, i.e. the Investigating Officer,
especially paragraph nos. 31 to 36 thereof, to submit that the
place of occurrence has stood proved. It is also submitted that a
bare perusal of the evidence of the prosecutrix would show that
her evidence is not only reliable but trustworthy as well, hence
her sole testimony is itself enough to prove the guilt of the
appellants and further there is no material discrepancy in the
evidence produced by the prosecution. It is thus submitted that
the learned Trial Court, after considering the evidence has rightly
convicted the appellants, hence all the aforesaid appeals are fit to
be dismissed.
33. The learned Amicus Curiae appearing for the prosecutrix/
victim has, at the outset submitted that such cases as the present
one should be dealt with sensitivity and moreover, a female who
is the victim of sexual assault, is not an accomplice to the crime
but is a victim of another person’s lust and, therefore her
evidence need not be tested with the same amount of suspicion
as that of an accomplice. It is further submitted that the offence
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of rape is a very serious offence which is not merely an assault
but degrades the entire personality of the prosecutrix, hence it is
required that her testimony should be read carefully, should not
be eyed with suspicion, minor contradictions should be ignored
and relentless cross-examination should not come in the way. It
is also submitted that a rape victim would never depose falsely,
hence refusal to act on the testimony of victim of sexual assault
is adding insult to injury. Nonetheless, it is submitted that a
conviction can definitely be based on the sole testimony of the
victim/prosecutrix when the evidence of the prosecutrix is found
to be trustworthy, unblemished, credible and her evidence is of
sterling quality. In this regard reliance has been placed on a
judgment rendered by the Hon’ble Apex Court in the case of
Bharwada Bhoginbhai Hirjibhai vs. The State of Gujarat,
reported in (1983) 3 SCC 217, paragraph nos. 2, 5, 6, 9 and 11
whereof are reproduced herein below:-
“2. The need of the hour is to mould and evolve the laws
so as to make it more sensitive and responsive to the
demands of the time in order to resolve the basic
problem: “Whether, when, and to what extent
corroboration to the testimony of a victim of rape is
essential to establish the charge.” And the problem has
special significance for the women in India, for, while
they have often been idolized, adored, and even
worshipped, for ages they have also been exploited and
denied even handed justice — sixty crores anxious eyes of
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And to that problem we will presently address ourselves.
5. …….. The finding of guilt recorded by the Sessions
Court as affirmed by the High Court has been challenged
mainly on the basis of minor discrepancies in the
evidence. We do not consider it appropriate or
permissible to enter upon a reappraisal or reappreciation
of the evidence in the context of the minor discrepancies
painstakingly highlighted by learned Counsel for the
appellant. Overmuch importance cannot be attached to
minor discrepancies. The reasons are obvious :
“(1) By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken
by events. The witness could not have anticipated the
occurrence which so often has an element of surprised.
The mental faculties therefore cannot be expected to be
attuned to absorb the details.
(3) The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind, whereas it might go unnoticed on the
part of another.
(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect a
witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess-work on the spur of the moment at
the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in
such matters. Again, it depends on the time-sense of
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individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall
accurately the sequence of events which takes place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.
(7) A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross-examination made by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from imagination
on the spur of the moment. The sub-conscious mind of
the witness sometimes so operates on account of the
fear of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him — Perhaps it is a sort of
a psychological defence mechanism activated on the
spur of the moment.”
6. Discrepancies which do not go to the root of the matter
and shake the basic version of the witnesses therefore
cannot be annexed with undue importance. More so when
the all important “probabilities factor” echoes in favour
of the version narrated by the witnesses.
9. In the Indian setting, refusal to act on the testimony of
a victim of sexual assault in the absence of corroboration
as a rule, is adding insult to injury. Why should the
evidence of the girl or the woman who complains of rape
or sexual molestation be viewed with the aid of spectacles
fitted with lenses tinged with doubt, disbelief or
suspicion? To do so is to justify the charge of male
chauvinism in a male dominated society. We must analyze
the argument in support of the need for corroboration
and subject it to relentless and remorseless cross-
examination. And we must do so with a logical, and not
an opinionated, eye in the light of probabilities with our
feet firmly planted on the soil of India and with our eyes
focussed on the Indian horizon. We must not be swept off
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the feet by the approach made in the western world which
has its own social milieu, its own social mores, its own
permissive values, and its own code of life.
Corroboration may be considered essential to establish a
sexual offence in the backdrop of the social ecology of the
western world. It is wholly unnecessary to import the said
concept on a turnkey basis and to transplant it on the
Indian soil regardless of the altogether different
atmosphere, attitudes, mores, responses of the Indian
society, and its profile. The identities of the two worlds
are different. The solution of problems cannot therefore
be identical. It is conceivable in the western society that a
female may level false accusation as regards sexual
molestation against a male for several reasons such
as……
11. In view of these factors the victims and their relatives
are not too keen to bring the culprit to books. And when
in the face of these factors the crime is brought to light
there is a built-in assurance that the charge is genuine
rather than fabricated. On principle the evidence of a
victim of sexual assault stands on par with evidence of an
injured witness. Just as a witness who has sustained an
injury (which is not shown or believed to be self-inflicted)
is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of a
sex offence is entitled to great weight, absence of
corroboration notwithstanding. And while corroboration
in the form of eyewitness account of an independent
witness may often be forthcoming in physical assault
cases, such evidence cannot be expected in sex offences,
having regard to the very nature of the offence. It would
therefore be adding insult to injury to insist on
corroboration drawing inspiration from the rules devised
by the courts in the western world (obeisance to which
has perhaps become a habit presumably on account of
the colonial hangover). We are therefore of the opinion
that if the evidence of the victim does not suffer from any
basic infirmity, and the “probabilities factor” does not
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render it unworthy of credence, as a general rule, there is
no reason to insist on corroboration except from the
medical evidence, where, having regard to the
circumstances of the case, medical evidence can be
expected to be forthcoming, subject to the following
qualification : Corroboration may be insisted upon when
a woman having attained majority is found in a
compromising position and there is a likelihood of her
having levelled such an accusation on account of the
instinct of self-preservation. Or when the “probabilities
factor” is found to be out of tune.”
34. Reference has also been made to a judgment rendered by
the Hon’ble Apex Court in the case of State of Himachal
Pradesh vs. Raghubir Singh, reported in (1993) 2 SCC 622,
paragraph no. 6 whereof is reproduced herein below:-
6. The learned Single Judge of the High Court also drew
an inference against the prosecution from the fact that
only two blood stains had been found on the shawl by the
Chemical Examiner and doubted the prosecution version
on that account. According to the learned Single Judge:
“In natural course if this shawl had been used under
the prosecutrix at the time of the alleged offence, the
same should have been drenched with blood in the
middle. Moreover, this shawl should have been full of
mud as it remained lying on the ground under the
prosecutrix for such a long time and when it had
rained throughout.”
In making the above observations, obviously the High
Court ignored the testimony of Doctor Urmil Gupta who
had found the presence of blood stains and mud on the
shawl and who had opined that the bleeding from the
edges of the vagina was slight and that some amount of
clotted blood was also present. The prosecutrix was a girl
of tender age and on account of the rape committed on
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her, there was bleeding from her vagina but to expect that
the shawl should have got “drenched with blood” as if
the large blood arteries had been cut, is letting the
imagination run wild and ignoring the circumstances of
the case. The absence of spermatozoa on the vaginal
slide, which was also pressed into aid by the High Court
to acquit the respondent, was not based on proper
scrutiny of the evidence. The prosecution case itself was
that on being surprised while the respondent was in the
act of committing sexual intercourse on the prosecutrix,
he ran away carrying his underwear. The absence of
spermatozoa under the circumstances could not be said
to be a circumstance in favour of the respondent at all.
The judgment of the High Court, in our opinion, is based
more on surmises and conjectures than on proper
appreciation of evidence. It exposes the insensitivity of
the learned Judge to the serious crime committed against
human dignity. We are not impressed by the manner in
which the High Court dealt with the case. Courts must be
wary, circumspect and slow to interfere with reasonable
and proper findings based on appreciation of evidence as
recorded by the lower courts, before upsetting the same
and acquitting an accused involved in the commission of
heinous offence of rape of hapless girl child.”
35. Yet another judgment relied upon by the learned Amicus
Curiae is the one rendered by the Hon’ble Apex Court in the
case of Phool Singh vs. State of Madhya Pradesh, reported in
(2022) 2 SCC 74, paragraphs no. 8 and 10 to 12 whereof are
reproduced herein below:-
“8. In Ganesan [Ganesan v. State, (2020) 10 SCC 573],
this Court has observed and held that there can be a
conviction on the sole testimony of the victim/prosecutrix
when the deposition of the prosecutrix is found to be
trustworthy, unblemished, credible and her evidence is of
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occasion to consider the series of judgments of this Court
on conviction on the sole evidence of the prosecutrix. In
paras 10.1 to 10.3, it is observed and held as under:
[Ganesan v. State, (2020) 10 SCC 573, SCC pp. 578-82)
“10.1. Whether, in the case involving sexual
harassment, molestation, etc. can there be conviction
on the sole evidence of the prosecutrix, in Vijay [Vijay
v. State of M.P., (2010) 8 SCC 191], it is observed in
paras 9 to 14 as under: (SCC pp. 195-98)
‘9. In State of Maharashtra v. Chandraprakash
Kewalchand Jain, (1990) 1 SCC 550, this Court
held that a woman, who is the victim of sexual
assault, is not an accomplice to the crime but is a
victim of another person’s lust and, therefore, her
evidence need not be tested with the same amount
of suspicion as that of an accomplice. The Court
observed as under: (SCC p. 559, para 16)
“16. A prosecutrix of a sex offence cannot be put
on a par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere
says that her evidence cannot be accepted unless
it is corroborated in material particulars. She is
undoubtedly a competent witness under Section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured
complainant or witness and no more. What is
necessary is that the court must be alive to and
conscious of the fact that it is dealing with the
evidence of a person who is interested in the
outcome of the charge levelled by her. If the
court keeps this in mind and feels satisfied that it
can act on the evidence of the prosecutrix, there
is no rule of law or practice incorporated in the
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Section 114 which requires it to look for
corroboration. If for some reason the court is
hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of
the prosecutrix must necessarily depend on the
facts and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction on her
evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the
case disclose that the prosecutrix does not have
a strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence.”
10. In State of U.P. vs. Pappu, (2005) 3 SCC 594,
this Court held that even in a case where it is
shown that the girl is a girl of easy virtue or a girl
habituated to sexual intercourse, it may not be a
ground to absolve the accused from the charge of
rape. It has to be established that there was consent
by her for that particular occasion. Absence of
injury on the prosecutrix may not be a factor that
leads the court to absolve the accused. This Court
further held that there can be conviction on the sole
testimony of the prosecutrix and in case, the court
is not satisfied with the version of the prosecutrix, it
can seek other evidence, direct or circumstantial,
by which it may get assurance of her testimony. The
Court held as under:
“12. It is well settled that a prosecutrix
complaining of having been a victim of the
offence of rape is not an accomplice after the
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
56/315crime. There is no rule of law that her testimony
cannot be acted upon without corroboration in
material particulars. She stands at a higher
pedestal than an injured witness. In the latter
case, there is injury on the physical form, while
in the former it is both physical as well as
psychological and emotional. However, if the
court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it
may search for evidence, direct or
circumstantial, which would lend assurance to
her testimony. Assurance, short of corroboration
as understood in the context of an accomplice,
would do.”
11. In State of Punjab v. Gurmit Singh, (1996) 2
SCC 384, this Court held that in cases involving
sexual harassment, molestation, etc. the court is
duty-bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant
discrepancies in the statement of a prosecutrix
should not be a ground for throwing out an
otherwise reliable prosecution case. Evidence of
the victim of sexual assault is enough for
conviction and it does not require any
corroboration unless there are compelling reasons
for seeking corroboration. The court may look for
some assurances of her statement to satisfy judicial
conscience. The statement of the prosecutrix is
more reliable than that of an injured witness as she
is not an accomplice. The Court further held that
the delay in filing FIR for sexual offence may not
be even properly explained, but if found natural,
the accused cannot be given any benefit thereof.
The Court observed as under:
“8. … The court overlooked the situation in
which a poor helpless minor girl had found
herself in the company of three desperate young
men who were threatening her and preventing
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
57/315her from raising any alarm. Again, if the
investigating officer did not conduct the
investigation properly or was negligent in not
being able to trace out the driver or the car, how
can that become a ground to discredit the
testimony of the prosecutrix? The prosecutrix
had no control over the investigating agency and
the negligence of an investigating officer could
not affect the credibility of the statement of the
prosecutrix. … The courts must, while evaluating
evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come
forward in a court just to make a humiliating
statement against her honour such as is involved
in the commission of rape on her. In cases
involving sexual molestation, supposed
considerations which have no material effect on
the veracity of the prosecution case or even
discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such
which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. …
Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury. …
Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of
prudence under given circumstances. …
***
21. … The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a
fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
58/315particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony,
it may look for evidence which may lend assurance
to her testimony, short of corroboration required in
the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive
to its responsibility and be sensitive while dealing
with cases involving sexual molestations.”
12. In State of Orissa v. Thakara Besra, (2002) 9
SCC 86, this Court held that rape is not mere
physical assault, rather it often distracts (sic
destroys) the whole personality of the victim. The
rapist degrades the very soul of the helpless female
and, therefore, the testimony of the prosecutrix
must be appreciated in the background of the entire
case and in such cases, non-examination even of
other witnesses may not be a serious infirmity in
the prosecution case, particularly where the
witnesses had not seen the commission of the
offence.
13. In State of H.P. v. Raghubir Singh, (1993) 2
SCC 622, this Court held that there is no legal
compulsion to look for any other evidence to
corroborate the evidence of the prosecutrix before
recording an order of conviction. Evidence has to
be weighed and not counted. Conviction can be
recorded on the sole testimony of the prosecutrix, if
her evidence inspires confidence and there is
absence of circumstances which militate against
her veracity. A similar view has been reiterated by
this Court in Wahid Khan v. State of M.P., (2010) 2
SCC 9, placing reliance on an earlier judgment in
Rameshwar v. State of Rajasthan, 1951 SCC.
14. Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found
to be worthy of credence and reliable, requires no
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
59/315
corroboration. The court may convict the accused
on the sole testimony of the prosecutrix.’
10.2. In Krishan Kumar Malik v. State of Haryana,
(2011) 7 SCC 130, it is observed and held by this Court
that to hold an accused guilty for commission of an
offence of rape, the solitary evidence of the prosecutrix
is sufficient, provided the same inspires confidence &
appears to be absolutely trustworthy, unblemished and
should be of sterling quality.
10.3. Who can be said to be a “sterling witness”, has
been dealt with and considered by this Court in Rai
Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21. In
para 22, it is observed and held as under:
’22. In our considered opinion, the “sterling
witness” should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version of
such witness should be in a position to accept it for
its face value without any hesitation. To test the
quality of such a witness, the status of the witness
would be immaterial and what would be relevant is
the truthfulness of the statement made by such a
witness. What would be more relevant would be the
consistency of the statement right from the starting
point till the end, namely, at the time when the
witness makes the initial statement and ultimately
before the court. It should be natural and
consistent with the case of the prosecution qua the
accused. There should not be any prevarication in
the version of such a witness. The witness should
be in a position to withstand the cross-examination
of any length and howsoever strenuous it may be
and under no circumstance should give room for
any doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it.
Such a version should have co-relation with each
and every one of other supporting material such as
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
60/315the recoveries made, the weapons used, the manner
of offence committed, the scientific evidence and
the expert opinion. The said version should
consistently match with the version of every other
witness. It can even be stated that it should be akin
to the test applied in the case of circumstantial
evidence where there should not be any missing
link in the chain of circumstances to hold the
accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the
above test as well as all other such similar tests to
be applied, can it be held that such a witness can
be called as a “sterling witness” whose version
can be accepted by the court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the
said witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the court trying the
offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty
of the charge alleged.’ ”
(emphasis in original)
10. In Sham Singh v. State of Haryana, (2018) 18 SCC
34, it is observed that testimony of the victim is vital and
unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts
should find no difficulty to act on the testimony of the
victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to
be reliable. It is further observed that seeking corroboration
of her statement before relying upon the same, as a rule,
in such cases amounts to adding insult to injury……
11. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand and
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
61/315as observed hereinabove, we see no reason to doubt the
credibility and/or trustworthiness of the prosecutrix. She
is found to be reliable and trustworthy. Therefore, without
any further corroboration, the conviction of the accused
relying upon the sole testimony of the prosecutrix can be
sustained.
12. Now so far as the submission on behalf of the accused
that as there were no external or internal injuries found
on the body of prosecutrix & therefore it may be a case of
consent is concerned, the aforesaid has no substance at
all. No such question was asked, even remotely, to the
prosecutrix in her cross-examination. Therefore, the
aforesaid submission is to be rejected outright.”
36. The learned Amicus Curiae has also relied upon a
Judgment rendered by the Hon’ble Apex Court in the case of
State of Maharashtra vs. Chandraprakash Kewalchand Jain,
reported in (1990) 1 SCC 550, paragraphs no. 17, 18, 22 and 29
whereof are reproduced herein below:-
“17. We think it proper, having regard to the increase in
the number of sex violation cases in the recent past,
particularly cases of molestation and rape in custody, to
remove the notion, if it persists, that the testimony of a
woman who is a victim of sexual violence must ordinarily
be corroborated in material particulars except in the
rarest of rare cases. To insist on corroboration except in
the rarest of rare cases is to equate a woman who is a
victim of the lust of another with an accomplice to a
crime and thereby insult womanhood. It would be adding
insult to injury to tell a woman that her story of woe will
not be believed unless it is corroborated in material
particulars as in the case of an accomplice to a crime.
Ours is a conservative society where it concerns sexual
behaviour. Ours is not a permissive society as in some of
the western and European countries. Our standard of
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
62/315decency and morality in public life is not the same as in
those countries. It is, however, unfortunate that respect
for womanhood in our country is on the decline and cases
of molestation and rape are steadily growing. An Indian
woman is now required to suffer indignities in different
forms, from lewd remarks to eve-teasing, from
molestation to rape. Decency and morality in public life
can be promoted and protected only if we deal strictly
with those who violate the societal norms. The standard
of proof to be expected by the court in such cases must
take into account the fact that such crimes are generally
committed on the sly and very rarely direct evidence of a
person other than the prosecutrix is available. Courts
must also realise that ordinarily a woman, more so a
young girl, will not stake her reputation by levelling a
false charge concerning her chastity.
18. But when such a crime is committed by a person in
authority, e.g. a police officer, should the court’s
approach be the same as in any other case involving a
private citizen? By our criminal laws wide powers are
conferred on police officers investigating cognizable
offences. The infrastructure of our criminal investigation
system recognises and indeed protects the right of a
woman to decent and dignified treatment at the hands of
the investigating agency. This is evident from the proviso
to sub-section (2) of Section 47 of the Code which obliges
the police officer desiring to effect entry to give an
opportunity to the woman in occupation to withdraw from
the building. So also sub-section (2) of Section 53
requires that whenever a female accused is to be
medically examined such examination must be under the
supervision of a female medical practitioner. The proviso
to Section 160 stipulates that whenever the presence of a
woman is required as a witness the investigating officer
will record her statement at her own residence. These are
just a few provisions which reflect the concern of the
legislature to prevent harassment and exploitation of
women and preserve their dignity. Notwithstanding this
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
63/315concern, if a police officer misuses his authority and
power while dealing with a young helpless girl aged
about 19 or 20 years, her conduct and behaviour must be
judged in the backdrop of the situation in which she was
placed. The purpose and setting, the person and his
position, the misuse or abuse of office and the despair of
the victim which led to her surrender are all relevant
factors which must be present in the mind of the court
while evaluating the conduct evidence of the prosecutrix.
A person in authority, such as a police officer, carries
with him the awe of office which is bound to condition the
behaviour of his victim. The court must not be oblivious
of the emotional turmoil and the psychological injury that
a prosecutrix suffers on being molested or raped. She
suffers a tremendous sense of shame and the fear of being
shunned by society and her near relatives, including her
husband. Instead of treating her with compassion and
understanding as one who is an injured victim of a crime,
she is, more often then not, treated as a sinner and
shunned. It must, therefore, be realised that a woman who
is subjected to sex violence would always be slow and
hesitant about disclosing her plight. The court must,
therefore, evaluate her evidence in the above background.
22. Before we proceed to deal with these discrepancies
we think it is necessary to clear the ground on the
question whether the prosecutrix had a sufficiently strong
motive to falsely involve the respondent and that too a
police officer. It is possible that she may have felt
annoyed at being dragged out of the hotel room at dead
of night after they had satisfied Police Sub-Inspector
Qureishi that they were legally wedded only a few hours
back. PW 1 may also have felt offended at being wrongly
booked under Sections 110/117, Bombay Police Act. The
question is whether on account of this annoyance both
PW 1 Mohmad Shafi and PW 2 Shamimbanu would be
prepared to stake the reputation of the latter? As pointed
out earlier ordinarily an Indian woman would be most
reluctant to level false accusation of rape involving her
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
64/315own reputation unless she has a very strong bias or
reason to do so. In the present case although the couple
had reason to be annoyed with the conduct of the
respondent, the reason was not strong enough for
Mohmad Shafi to involve his wife and soil her reputation
nor for Shamimbanu to do so. An Indian woman attaches
maximum importance to her chastity and would not easily
be a party to any move which would jeopardise her
reputation and lower her in the esteem of others. There
are, therefore, no such strong circumstances which would
make the court view her evidence with suspicion.
29. On the question of sentence we can only say that
when a person in uniform commits such a serious crime
of rape on a young girl in her late teens, there is no room
for sympathy or pity. The punishment must in such cases
be exemplary. We, therefore, do not think we would be
justified in reducing the sentence awarded by the trial
court which is not harsh.”
37. At this juncture, reliance is placed on a judgment
rendered by the Hon’ble Apex Court in the case of State of
Punjab vs. Gurmit Singh & Ors., reported in (1996) 2 SCC
384, para nos. 8 and 21 whereof are reproduced herein below:-
“8. The grounds on which the trial court disbelieved the
version of the prosecutrix are not at all sound. The
findings recorded by the trial court rebel against realism
and lose their sanctity and credibility. The court lost sight
of the fact that the prosecutrix is a village girl. She was a
student of Xth class. It was wholly irrelevant and
immaterial whether she was ignorant of the difference
between a Fiat, an Ambassador or a Master car. Again,
the statement of the prosecutrix at the trial that she did
not remember the colour of the car, though she had given
the colour of the car in the FIR was of no material effect
on the reliability of her testimony. No fault could also be
found with the prosecution version on the ground that the
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
65/315prosecutrix had not raised an alarm while being
abducted. The prosecutrix in her statement categorically
asserted that as soon as she was pushed inside the car
she was threatened by the accused to keep quiet and not
to raise any alarm, otherwise she would be killed. Under
these circumstances to discredit the prosecutrix for not
raising an alarm while the car was passing through the
bus adda is a travesty of justice. The court overlooked the
situation in which a poor helpless minor girl had found
herself in the company of three desperate young men who
were threatening her and preventing her from raising any
alarm. Again, if the investigating officer did not conduct
the investigation properly or was negligent in not being
able to trace out the driver or the car, how can that
become a ground to discredit the testimony of the
prosecutrix? The prosecutrix had no control over the
investigating agency and the negligence of an
investigating officer could not affect the credibility of the
statement of the prosecutrix. The trial court fell in error
for discrediting the testimony of the prosecutrix on that
account. In our opinion, there was no delay in the
lodging of the FIR either and if at all there was some
delay, the same has not only been properly explained by
the prosecution but in the facts and circumstances of the
case was also natural. The courts cannot overlook the
fact that in sexual offences delay in the lodging of the FIR
can be due to variety of reasons particularly the
reluctance of the prosecutrix or her family members to go
to the police and complain about the incident which
concerns the reputation of the prosecutrix and the honour
of her family. It is only after giving it a cool thought that
a complaint of sexual offence is generally lodged. The
prosecution has explained that as soon as Tirlok Singh
PW 6, father of the prosecutrix came to know from his
wife, PW 7 about the incident he went to the village
Sarpanch and complained to him. The Sarpanch of the
village also got in touch with the Sarpanch of Village
Pakhowal, where in the tubewell kotha of Ranjit Singh
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
66/315rape was committed, and an effort was made by the
panchayats of the two villages to sit together and settle
the matter. It was only when the Panchayats failed to
provide any relief or render any justice to the prosecutrix,
that she and her family decided to report the matter to the
police and before doing that naturally the father and
mother of the prosecutrix discussed whether or not to
lodge a report with the police in view of the repercussions
it might have on the reputation and future prospects of the
marriage etc. of their daughter. Tirlok Singh PW 6
truthfully admitted that he entered into consultation with
his wife as to whether to lodge a report or not and the
trial court appears to have misunderstood the reasons
and justification for the consultation between Tirlok
Singh and his wife when it found that the said
circumstance had rendered the version of the prosecutrix
doubtful. Her statement about the manner in which she
was abducted and again left near the school in the early
hours of next morning has a ring of truth. It appears that
the trial court searched for contradictions and variations
in the statement of the prosecutrix microscopically, so as
to disbelieve her version. The observations of the trial
court that the story of the prosecutrix that she was left
near the examination centre next morning at about 6 a.m.
was “not believable” as “the accused would be the last
persons to extend sympathy to the prosecutrix” are not at
all intelligible. The accused were not showing “any
sympathy” to the prosecutrix while driving her at 6.00
a.m. next morning to the place from where she had been
abducted but on the other hand were removing her from
the kotha of Ranjit Singh and leaving her near the
examination centre so as to avoid being detected. The
criticism by the trial court of the evidence of the
prosecutrix as to why she did not complain to the lady
teachers or to other girl students when she appeared for
the examination at the centre and waited till she went
home and narrated the occurrence to her mother is
unjustified. The conduct of the prosecutrix in this regard
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
67/315appears to us to be most natural. The trial court
overlooked that a girl, in a tradition-bound non-
permissive society in India, would be extremely reluctant
even to admit that any incident which is likely to reflect
upon her chastity had occurred, being conscious of the
danger of being ostracized by the society or being looked
down by the society. Her not informing the teachers or
her friends at the examination centre under the
circumstances cannot detract from her reliability. In the
normal course of human conduct, this unmarried minor
girl, would not like to give publicity to the traumatic
experience she had undergone and would feel terribly
embarrassed in relation to the incident to narrate it to
her teachers and others overpowered by a feeling of
shame and her natural inclination would be to avoid
talking about it to anyone, lest the family name and
honour is brought into controversy. Therefore her
informing her mother only on return to the parental house
and no one else at the examination centre prior thereto is
in accord with the natural human conduct of a female.
The courts must, while evaluating evidence, remain alive
to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out an
otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on
the testimony of a victim of sexual assault alone to
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
68/315convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost on a par with
the evidence of an injured witness and to an extent is even
more reliable. Just as a witness who has sustained some
injury in the occurrence, which is not found to be self-
inflicted, is considered to be a good witness in the sense
that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding.
Corroborative evidence is not an imperative component
of judicial credence in every case of rape. Corroboration
as a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be
overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime but is a victim
of another person’s lust and it is improper and
undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of
law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to
a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
69/315crime strikes the judicial mind as probable……..
21. Of late, crime against women in general and rape in
particular is on the increase. It is an irony that while we
are celebrating woman’s rights in all spheres, we show
little or no concern for her honour. It is a sad reflection
on the attitude of indifference of the society towards the
violation of human dignity of the victims of sex crimes.
We must remember that a rapist not only violates the
victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm in
the process. Rape is not merely a physical assault — it is
often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such
cases with utmost sensitivity. The courts should examine
the broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of her
statement in material particulars. If for some reason the
court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend
assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of
the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestations.”
38. Lastly, on the aforesaid issue, reliance has been placed on
a judgment rendered by the Hon’ble Apex Court in the case of
Lillu alias Rajesh and Anr. vs. The State of Haryana, reported
in (2013)14 SCC 643, paragraphs no. 12 and 13 whereof are
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
70/315
reproduced herein below:-
“12. In State of Punjab v. Ramdev Singh [(2004) 1 SCC
421] this court dealt with the issue and held that rape is
violative of the victim’s fundamental right under Article
21 of the Constitution. So, the courts should deal with
such cases sternly and severely. Sexual violence, apart
from being a dehumanising act, is an unlawful intrusion
on the right of privacy and sanctity of a woman. It is a
serious blow to her supreme honour and offends her self-
esteem and dignity as well. It degrades and humiliates the
victim and where the victim is a helpless innocent child
or a minor, it leaves behind a traumatic experience. A
rapist not only causes physical injuries, but leaves behind
a scar on the most cherished position of a woman i.e. her
dignity, honour, reputation and chastity. Rape is not only
an offence against the person of a woman, rather a crime
against the entire society. It is a crime against basic
human rights and also violates the most cherished
fundamental right guaranteed under Article 21 of the
Constitution.
13. In view of the International Covenant on Economic,
Social, and Cultural Rights, 1966 and the United Nations
Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, 1985, the rape survivors are
entitled to legal recourse that does not re-traumatise
them or violate their physical or mental integrity and
dignity. They are also entitled to medical procedures
conducted in a manner that respects their right to
consent. Medical procedures should not be carried out in
a manner that constitutes cruel, inhuman, or degrading
treatment and health should be of paramount
consideration while dealing with gender-based violence.
The State is under an obligation to make such services
available to survivors of sexual violence. Proper
measures should be taken to ensure their safety and there
should be no arbitrary or unlawful interference with their
privacy.”
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
71/315
39. Now adverting to the case in hand, the learned Amicus
Curiae has first submitted that the natural conduct of the
prosecutrix and the chain of events which goes to establish that
the prosecutrix is a sterling witness are evident from the
evidence on record and a bare perusal of the testimony of the
prosecution witnesses would reveal the undisputed facts and
sequence of events pertaining to the occurrence in question,
which are being stated herein after. The prosecutrix and her
siblings were staying alone at Biharsharif for their education
and just two months before the date of incident, the prosecutrix
had come to Biharsharif. Sulekha Devi (Appellant No. 2) and
her daughter Chhoti Devi (Appellant No. 6) were the neighbours
of the prosecutrix and she had become familiar with them
during the course of two months apart from the Appellant nos. 2
& 6 being regarded as guardian figure in absence of the parents
of prosecutrix at Biharsharif. Thus, while the prosecutrix was
going with Sulekha Devi to the alleged birthday party, her elder
sister, i.e. PW-1 had neither given any mobile to the prosecutrix
nor she had asked her brother or sister to accompany the
prosecutrix on account of their faith in Appellant nos. 2 and 6.
40. The learned Amicus Curiae has further submitted that the
evidence on record would show that earlier on two occasions the
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prosecutrix had refused to go with the Appellant nos. 2 and 6,
hence she did not want to upset them this time, as such had
agreed to go with them to the alleged birthday party. The
Appellant nos. 2 and 6 had informed PW-1 that the birthday
party was at Bharaopar and they would return back in 1-1½
hours, hence after much persuasion, PW-1 had permitted the
prosecutrix to go to the alleged birthday party since she was
expected to come back before it became dark, whereafter Chhoti
Devi, Sulekha Devi, one 8-10 years old girl and daughter of
Chhoti Devi, namely Tuktuk took the prosecutrix to
Ramchandarpur where they told her to climb a bus, whereupon
the prosecutrix had raised an objection but was calmed down by
stating that they were going to Bakhtiyarpur to pick up Nani of
appellant no. 6 (Chhoti Devi) since she will also go to the
birthday party, hence the prosecutrix had been induced into
sitting in the bus to go to Bakhtiyarpur. As it is, the prosecutrix
did not know about any locality of Biharsharif and had neither
gone to Bharaopar or Ramchandarpur or Bakhtiyarpur or
Giriyak or for that matter Pathra English, before the date of
incident. At Bakhtiyarpur, the prosecutrix met Nani of Appellant
No. 6, Appellant nos. 4 and 5 and there all of them had dinner.
Thereafter, the victim had asked Appellant nos. 2 and 6 to call
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her sister i.e. PW-1, since it was getting late and inform her that
they would get late but she was told that they did not have the
mobile number of PW-1, hence they cannot call her. Thus, till
this time there was nothing suspicious to create an alarm in the
mind of the prosecutrix. After an hour the prosecutrix was made
to sit in a Bolero vehicle wherein three strangers were sitting,
however, the prosecutrix did not suspect any foul play since
Nani of Appellant No. 6, i.e. Appellant No. 3 (Radha Devi) and
a young girl aged about 8-10 years as also Appellant No. 2 had
sat in the vehicle although at the inception the prosecutrix had
resisted and had stated that if Chhoti did not sit in the vehicle
she would not sit but then she was told that since there is no
space in the vehicle, the Appellant No. 6 shall come in a
different car, hence the victim did not raise any alarm.
41. It is stated that the evidence on record would bear it out
that throughout the journey from Bakhtiyarpur to Giriyak and
Pathra English, the prosecutrix was getting impatient and asking
the ladies present in the vehicle as to how much time it would
take to reach Biharsharif, on which the Appellant No. 2, Sulekha
Devi told her that they were about to reach Biharsharif. Since
the prosecutrix did not know the route and had never been to
Giriyak, she believed that Biharsharif would come after crossing
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Giriyak. After the prosecutrix had reached the place of
occurrence, i.e. Pathra English at about 11:00-11:30 in the night,
she was informed by the Appellant No. 2, Sulekha Devi that
they had reached Giriyak. At that time not only all the shops
were closed but nobody could be found on the street and there
were only 2-3 servants/guards at the four storied building, who
had greeted Appellant No. 2 Sulekha Devi. The prosecutrix had
not raised any alarm since all the persons present at the said
house were known to the Appellant No. 2, Sulekha Devi but the
prosecutrix had then confronted Appellant No. 2 Sulekha Devi
as to why they have not gone to the birthday party, whereafter
she was informed by the Appellant No. 2, Sulekha Devi that
they had not come to a birthday party but they have come to
meet a Sir who is a good man. Nonetheless, the prosecutrix who
was all alone there was taken by the Appellant No. 2 Sulekha
Devi to the third floor of the house in question where food was
served and she had eaten a bit of it reluctantly. Thereafter,
around 12:00 in the midnight, the prosecutrix was called to the
second floor where a man aged about 40-50 years was present in
the room and was drinking liquor, which was also offered to the
Appellant No. 2, Sulekha Devi and the prosecutrix but the
prosecutrix had denied, however in the meantime, Radha Devi
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(Appellant No. 3) had arrived there with the young girl aged
about 8-10 years but the said person had turned her away saying
that she is too young, whereafter Radha Devi had taken her
away and only then the prosecutrix got suspicious and scared.
The appellant no. 1 Rajballabh Prasad @ Rajballabh Yadav had
then forcibly put a cigarette in the mouth of the prosecutrix,
whereafter she was made to sit on a bed forcibly as also the
Appellant No. 2 Sulekha Devi had disrobed her Pajama and
when the prosecutrix had resisted, the Appellant No. 2, Sulekha
Devi had threatened her that she would be sent to the
servants/guards who would abuse her throughout the night,
whereupon the Appellant Nos. 1 and 2 had held the hands of the
prosecutrix while Appellant No. 2 Sulekha Devi had also put a
cloth in the mouth of the prosecutrix and gagged her and then
the appellant no. 1, Rajballabh Prasad @ Rajballabh Yadav had
committed rape with her for 1-1½ hours. It is submitted that
neither the Appellant No. 1, Rajballabh Prasad @ Rajballabh
Yadav had bit the prosecutrix on her body nor the prosecutrix
could either scratch or assault the Appellant No. 1, Rajballabh
Prasad @ Rajballabh Yadav since her hands were being held
tightly by Appellant Nos. 1 and 2. The prosecutrix had become
too weak to get up, hence the Appellant No. 2 Sulekha Devi
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had helped her to get up and get dressed, whereafter she was
taken to a room at the third floor and there she was told to
freshen up. The prosecutrix had then washed herself but she
neither tried to escape nor raise an alarm since no one known to
her was present there and the house was being guarded by the
guards of Appellant No. 1, Rajballabh Prasad @ Rajballabh
Yadav. The prosecutrix was then told to sleep since it was late in
the night but she could not sleep and later she heard the
Appellant Nos. 2 and 3 talking about monetary transaction.
42. It is stated that thereafter, in the morning at about 4:00
a.m., she along with Sulekha Devi, Radha Devi and the young
girl aged about 8-10 years had left the house in question in a car
for Bakhtiyarpur, however in the early morning not a single
person was present in and around the said house or on the way
back to Bakhtiyarpur, hence there was no question of the
prosecutrix raising any alarm and moreover all throughout the
journey from Pathra English to Bakhtiyarpur, the prosecutrix
was being threatened that in case she disclosed about the
incident to anyone, she would have to face the consequences.
After the prosecutrix and others had reached Bakhtiyarpur, they
took an auto from Ranisarai to Biharsharif Bus Stand and then
they came to Ramchandarpur Bus Stand by bus, however since
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she had been threatened by the said appellants and was scared as
also not in a proper state of mind, she could not raise any alarm.
The victim was then dropped at her residence around 10:00 a.m.
on 07.02.2016 where PW-3, sister of the prosecutrix had opened
the door and saw her crying, however the prosecutrix rushed to
the bathroom and washed her clothes with soap as also cleaned
the blood stains. PW-3 had then continuously asked the
prosecutrix as to what had happened but she waited for PW-1 to
return from her coaching so that she would not have to repeat
the horrifying incident twice and when PW-1 came, she revealed
about the incident to PW-1 and PW-3, whereafter they became
nervous and worried and then they had called their father but
they did not reveal about the rape incident and had only told him
that she was sick and had asked him to come. In fact the mother
of the prosecutrix was sick and undergoing treatment, hence the
girls had thought it proper not to torment both their mother and
father, however in the evening of 08.02.2016, father of the
prosecutrix had come to Biharsharif when PW-1 had narrated
the incident, whereafter he had panicked and took some time to
come to terms with the said news and then on the next day
morning at around 10:00-10:30 a.m., he along with the
prosecutrix and PW-1 had gone to Mahila (Nalanda) Police
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Station, Biharsharif to lodge a case, whereafter the aforesaid
FIR was registered and investigation was conducted by the
police, during the course whereof, the prosecutrix was taken to
the place of occurrence on 11.02.2016, where she had screamed
upon seeing the house in question at Pathra English as also the
Appellant No. 1, Rajballabh Prasad @ Rajballabh Yadav
strolling there and then she had identified both the house and the
Appellant No. 1.
43. Thus, the learned Amicus Curiae has submitted a bare
reading of the aforesaid sequence of events, as is manifest from
the evidence on record, would show that the conduct of the
prosecutrix and her family members is absolutely natural, there
is no missing link in the entire chain of events, as narrated by
the prosecutrix so as to raise any doubt of prevarication in her
testimony. It is next submitted that the victim has withstood the
lengthy and strenuous cross-examination of the defence but has
not given any room for any doubt as to the factum of
occurrence. Thus all the aforesaid facts and circumstances
definitely demonstrates that the prosecutrix is a sterling witness,
on whose sole testimony the guilt of the accused can be
proved/confirmed. In this regard it has been submitted that the
Hon’ble Apex Court in the case of Rai Sandeep @ Deepu Vs.
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State (NCT of Delhi), reported in (2012) 8 SCC 21 has
enumerated the criteria’s for determining as to whether the
prosecutrix is a sterling witness or not and considering the said
factors, it can be safely concluded that the prosecutrix is a
sterling witness.
44. Elaborating further on the aforesaid aspect of the matter,
the learned Amicus Curiae has submitted that as far as the
evidence of the prosecutrix is concerned, if the same is read in
conjunction with the written report and the statement made
under Section 164 Cr.P.C. before the learned Magistrate, it
would be apparent that she is consistent on the date and time of
occurrence as also the mode and manner of incident, she has
also consistently deposed about the sequence of event, she is
also consistent with regard to the persons who had accompanied
her right from her residence to the house of the appellant no. 1
Rajballabh Prasad @ Rajballabh Yadav which is the place of
occurrence and the accused persons with whom she had met,
she is also consistent with regard to the description of the place
of occurrence/ identification of the accused/his house, the route
and mode of transport and the chain of events culminating in the
commission of rape by appellant no. 1 Rajballabh Prasad @
Rajballabh Yadav with the prosecutrix and thereafter and no
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contradictions have been elicited by the defence while cross-
examining her. It is thus submitted that the evidence of the
prosecutrix is consistent and trustworthy, hence the said witness
is that of a sterling quality. The learned Amicus Curiae has next
submitted that the evidence of PW-2, i.e. the prosecutrix, PW-5
Rajeshwar Ram (Assistant Sub-Inspector of Police), PW-6
Manju Yadav (Assistant Sub-Inspector of Police), PW-7
Gandhari Devi (Sub-Inspector of Police) and PW-15 Mridula
Kumari (Investigating Officer) would show that there is enough
proof of the fact that the prosecutrix had identified not only the
place of occurrence, i.e. the white house at Pathra English but
had also identified the perpetrator of crime i.e. the appellant no.
1 namely, Rajballabh Prasad @ Rajballabh Yadav.
45. The other issue raised by the Ld. Amicus Curiae is that
the sole testimony of the prosecutrix requires no corroboration
and the same would be enough to prove the guilt of the accused
persons beyond all reasonable doubt. In this regard, reference
have been made to various judgments rendered by the Hon’ble
Apex Court, which are being enumerated herein below:-
i. Bharwada Bhoginbhai (supra);
ii. Ram Sevak Lohar vs. State, reported in 2022 SCC
Online Cal 551;
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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in (2003) 11 SCC 367;
iv. Raghubhir Singh (supra);
v. Phool Singh (supra);
vi. Om Prakash vs. State of UP, reported in (2006) 9 SCC
787;
vii. Chandraprakash Kewalchand Jain (supra);
viii. Gurmit Singh & Ors. (supra);
ix. Lok Mal alias Loku vs. State of UP, reported in 2025
SCC Online SC 516.
46. The learned Amicus Curiae has also relied on some
judgments rendered by the Hon’ble Apex Court to submit that
the testimony of the prosecutrix stands on a higher pedestal than
the injured witnesses. Reference has been made in this regard to
the following judgments:-
i. Bharwada Bhoginbhai (supra);
ii. State of Punjab vs. Ramdev Singh, reported in (2004) 1
SCC 421;
ii. Phool Singh (supra);
iv. Om Prakash (supra);
v. Chandraprakash Kewalchand Jain (supra);
vi. Lok Mal alias Loku (supra);
vii. State of UP vs. Pappu, reported in (2005)3 SCC 594;
viii. Lillu @ Rajesh (supra);
ix. Ram Sevak Lohar (supra);
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
82/315x. Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma
@ Pappu vs. State of Bihar, reported in 2024 SCC Online
Pat 6324.
47. The learned Amicus Curiae has also stated that the
aforesaid sequence of events not only explains reasonably the
delay in lodging of FIR but also the reasons as to why the
prosecutrix had not raised any alarm at any public place, apart
from the reasons for absence of injury on the body of the
prosecutrix. It is submitted that the case in hand is a case of
sexual assault, hence the same cannot be equated with a case
involving other offences, thus the delay in lodging of the FIR in
the present case cannot lead to any adverse inference qua the
prosecutrix. In this regard, reference has also been made to the
evidence of the prosecutrix i.e. PW-2 to submit that the
prosecutrix has consistently stated in her evidence that she had
been threatened not to disclose about the incident, hence not
only she but her sisters had also become nervous when she had
returned back to her home after the incident on 07.02.2016 and
had, therefore not informed her father, which had ultimately led
to delay in lodging of the FIR. It has also been stated that the
mental condition of the prosecutrix was also not such that she
could have immediately gone to the police station and informed
the police about the incident and she had taken some time to get
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composed, whereafter she along with her sisters had called their
father and then the FIR was lodged on the morning of 9.2.2016.
In this regard, reliance has been placed on the judgments
rendered by the Hon’ble Apex Court, which are being detailed
herein below:-
i. Ramdev Singh (supra),
ii. State of Himachal Pradesh vs. Prem Singh, reported in
(2009) 1 SCC 420,iii. Phool Singh (supra) and
iv. Gurmit Singh & Ors. (supra).
48. The next issue which has been canvassed by the learned
Amicus Curiae is the one regarding the age of the prosecutrix. It
is submitted by the learned Amicus Curiae that the provisional
matriculation certificate has been submitted by PW-2
prosecutrix, wherein her date of birth has been shown to be
04.01.2000. The learned Amicus Curiae has also referred to the
evidence of PW-8, Dr. Shailendra Kumar to submit that he has
stated in his evidence that a Medical Board was constituted
under the Chairmanship of Civil Surgeon-cum-C.M.O., Nalanda
vide letter dated 17.02.2016 comprising of six members
including him and upon a detailed physical, dental, radiological
and pathological examination of the prosecutrix, the Medical
Board has opined that the age of the prosecutrix is in between
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16 to 17 years and rape could not be ruled out. In fact PW-9, Dr.
Budha Prakash (Orthopaedic surgeon and member of the
Medical Board) has also stated in his evidence that he was one
of the member of the Medical Board and after going through the
x-ray plates, the age of the prosecutrix was determined in
between 16-17 years. PW-10, Dr. Akhilesh Kumar (Dental
Surgeon and a member of the Medical Board) has stated in his
evidence that he was also part of the Medical Board which had
conducted the medical examination of the prosecutrix and he
had examined the teeth of the prosecutrix and on examination of
teeth of the victim, he had concluded that the age of the
prosecutrix was less than 17 years. As far as PW-11, Dr.
Kumkum Kumari (Lady Medical Officer) and PW-13, Dr.
Kumari Preeti Ranjna (Lady Medical Officer) are concerned,
they have also stated in their evidence that they were also one of
the members of the Medical Board and on physical examination
of the victim, her age has been found to be in between 16-17
years. The learned Amicus Curiae has next stated that the father
of the victim i.e. PW-4, has chronologically explained the
sequence of events, beginning from solemnization of his
marriage in the year 1990 upto the birth of his children, which
would be apparent from paragraph nos. 7 and 13 to 17 of the
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evidence of PW-4 and the same also substantiate the fact that
the prosecutrix was born in the year 2000. In this regard, it has
been submitted that the same test as is required to determine the
juvenility of a child in conflict with law is also required to be
followed in the case of determining the juvenility of a minor
prosecutrix. Reference has been made to a leading judgment
rendered by the Hon’ble Apex Court in the case of Jarnail
Singh vs. The State of Haryana, reported in (2013)7 SCC 263,
paragraphs no. 22 and 23 whereof are reproduced herein below:-
“22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as “the 2007 Rules”). The
aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Rule 12 referred to hereinabove
reads as under:
“12.Procedure to be followed in determination of age.
–(1) In every case concerning a child or a juvenile in
conflict with law, the court or the Board or as the case
may be, the Committee referred to in Rule 19 of these
Rules shall determine the age of such juvenile or child
or a juvenile in conflict with law within a period of
thirty days from the date of making of the application
for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and
send him to the observation home or in jail.
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(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the court or the Board or, as the case
may be, the Committee by seeking evidence by
obtaining–
(a)(i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof; (iii) the birth certificate
given by a corporation or a municipal authority
or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will
be sought from a duly constituted Medical
Board, which will declare the age of the juvenile
or child. In case exact assessment of the age
cannot be done, the court or the Board or, as the
case may be, the Committee, for the reasons to
be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year,
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile
in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the court or the Board
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or as the case may be the Committee shall in writing
pass an order stating the age and declaring the status
of juvenility or otherwise, for the purpose of the Act
and these Rules and a copy of the order shall be given
to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise
is required, inter alia, in terms of Section 7-A, Section
64 of the Act and these Rules, no further inquiry shall
be conducted by the court or the Board after examining
and obtaining the certificate or any other documentary
proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the
juvenile in conflict with law.”
23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are
of the view that the aforesaid statutory provision should
be the basis for determining age, even of a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the
2007 Rules, to determine the age of the prosecutrix VW,
PW 6. The manner of determining age conclusively has
been expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of a child
is ascertained by adopting the first available basis out of
a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available would conclusively
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determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the
child concerned is the highest rated option. In case, the
said certificate is available, no other evidence can be
relied upon. Only in the absence of the said certificate,
Rule 12(3) envisages consideration of the date of birth
entered in the school first attended by the child. In case
such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or
a municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in
the absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the child
concerned, on the basis of medical opinion.”
49. The learned Amicus Curiae has further submitted by
referring to Exhibit-3 i.e. the provisional certificate dated
29.05.2016 (marked as Exhibit-3) of the prosecutrix of having
passed the Annual Secondary School Examination, 2016, which
has been issued by the Bihar School Examination Board, Patna
(hereinafter referred to as the “provisional matriculation
certificate”) that the same is a public document and therefore, it
is not required to be proved like any other document, although
the same has been marked as an exhibit with objection. It is
stated that the defence has not put any question to the
prosecutrix on the issue as to whether the said provisional
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matriculation certificate is original or a photo-copy or
mechanical copy of the original, hence it would be presumed
that the same is the original copy of the provisional
matriculation certificate of the prosecutrix. In this regard, the
learned Amicus Curiae for the prosecutrix has placed reliance
on Section 74 of the Indian Evidence Act, 1872.
50. On the issue of age determination, various judgments
rendered by the Hon’ble Apex Court have been referred to,
which are being enumerated herein below:-
i. Jarnail Singh vs. State of Haryana, reported in (2013) 7
SCC 263;
ii. Rishipal Singh Solanki v. State of U.P., reported in
(2022) 8 SCC 602;
iii. Ashwani Kumar Saxena vs. State of M.P., reported in
(2012) 9 SCC 750;
iv. Parag Bhati vs. State of UP, reported in (2016)12 SCC
744;
v. State of M.P. vs. Anoop Singh, reported in (2015) 7
SCC 773;
vi. Satyabrat Ashok @ Satya Vrat Ashok @ Pappu
Sharma @ Pappu (supra).
51. The learned Amicus Curiae for the prosecutrix has also
submitted that even if the provisional matriculation certificate of
the prosecutrix is kept aside for a moment and the medical
report furnished by the Medical Board on 17.02.2016 (Exhibit-
4) is taken into account, the same depicts that the age of the
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prosecutrix has been assessed to be in between 16-17 years, as is
apparent from the final opinion of the said Medical Board,
which is being reproduced herein below:-
“Final opinion:- On the basis of above Physical, Dental,
Radiological and Pathological Examination the Board is
in opinion of that the age of Preeti Kumari D/o Jaganath
Prasad is between (16 to 17 yrs.) Sixteen to Seventeen
years and Rape cannot be ruled out.”
52. Thus, it is submitted that the prosecutrix is undoubtedly
below the age of 17 years. In this regard, reliance has also been
placed on the testimony of PW-4 i.e. father of the prosecutrix,
PW-8, Dr. Shailendra Kumar, PW-9, Dr. Budha Prakash, PW-10,
Dr. Akhilesh Kumar, PW-11, Dr. Kumkum Kumari (Lady
Medical Officer) and PW-13, Dr. Kumari Preeti Ranjna (Lady
Medical Officer).
53. The learned Amicus Curiae has next contended that
Section 29 of the POCSO Act, 2012 postulates that the Special
Court shall presume, that such person who is being prosecuted
for committing or abetting or attempting to commit any offence
under Sections 3, 5, 7 and 9 of the Act has committed or abetted
or attempted to commit the offence unless the contrary is
proved. Reference has also been made to Section 30 of the
POCSO Act, 2012 to submit that for the purposes of this
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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Section, a fact is said to be proved only when the Special Court
believes it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance of
probability. For ready reference Sections 29 and 30 of the
POCSO Act, 2012 are reproduced herein below:-
“29. Presumption as to certain offences.- Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5, 7
and section 9 of this Act, the Special Court shall presume,
that such person has committed or abetted or attempted
to commit the offence, as the case may be unless the
contrary is proved.
30. Presumption of culpable mental state.- (1) In any
prosecution for any offence under this Act which requires
a culpable mental state on the part of the accused, the
Special Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove the
fact that he had no such mental state with respect to the
act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its
existence is established by a preponderance of
probability.
Explanation.- In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact.”
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54. On the aforesaid issue reference has been made to a
judgment rendered by the Hon’ble Apex Court in the case of
Jarnail Singh vs. The State of Haryana, reported in (2013 )7
SCC 263 as also the one rendered in the case of Ram Sewak
Lohar vs. State, reported in 2022 (SCC online) CAL 551.
55. The learned Amicus Curiae has also relied on a judgment
rendered by a Co-ordinate Bench of this Court in the case of
Satyabrat Ashok vs. State of Bihar, reported in 2024 SCC
online PAT 6324, paragraphs no. 18 and 21 whereof are
reproduced herein below:-
“18. In Babu v. State of Kerala, (2010) 9 SCC 189,
Hon’ble Apex Court has observed as follows:
“27. Every accused is presumed to be innocent unless
the guilt is proved. The presumption of innocence is a
human right. However, subject to the statutory
exceptions, the said principle forms the basis of
criminal jurisprudence. For this purpose, the nature
of the offence, its seriousness and gravity thereof has
to be taken into consideration. The courts must be on
guard to see that merely on the application of the
presumption, the same may not lead to any injustice
or mistaken conviction. Statutes like Negotiable
Instruments Act, 1881; Prevention of Corruption Act,
1988; and Terrorist and Disruptive Activities
(Prevention) Act, 1987, provide for presumption of
guilt if the circumstances provided in those Statutes
are found to be fulfilled and shift the burden of proof
of innocence on the accused. However, such a
presumption can also be raised only when certain
foundational facts are established by the prosecution.
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
93/315There may be difficulty in proving a negative fact.
28. However, in cases where the statute does not
provide for the burden of proof on the accused, it
always lies on the prosecution. It is only in
exceptional circumstances, such as those of statutes
as referred to hereinabove, that the burden on proof is
on the accused. The statutory provision even for a
presumption of guilt of the accused under a particular
statute must meet the tests of reasonableness and
liberty enshrined in Articles 14 and 21 of the
Constitution.”
(Emphasis supplied)
21. In Shivaji Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793, Hon’ble Supreme Court has held as
follows:–
“6. …………. The dangers of exaggerated devotion to
the rule of benefit of doubt at the expense of social
defence and to the soothing sentiment that all
acquittals are always good regardless of justice to the
victim and the community, demand especial emphasis
in the contemporary context of escalating crime and
escape. The judicial instrument has a public
accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs
through the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and
degree of doubt. The excessive solicitude reflected in
the attitude that a thousand guilty men may go but
one innocent martyr shall not suffer is a false
dilemma. Only reasonable doubts belong to the
accused. Otherwise any practical system of justice
will then break down and lose credibility with the
community. The evil of acquitting a guilty person light
heartedly as a learned Author [Glanville Williams in
‘Proof of Guilt’.] has sapiently observed, goes much
beyond the simple fact that just one guilty person has
gone unpunished. If unmerited acquittals become
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94/315general, they tend to lead to a cynical disregard of the
law, and this in turn leads to a public demand for
harsher legal presumptions against indicted
“persons” and more severe punishment of those who
are found guilty. Thus, too frequent acquittals of the
guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless. For all
these reasons it is true to say, with Viscount Simon,
that “a miscarriage of justice may arise from the
acquittal of the guilty no less than from the conviction
of the innocent….” In short, our jurisprudential
enthusiasm for presumed innocence must be
moderated by the pragmatic need to make criminal
justice potent and realistic. A balance has to be struck
between chasing chance possibilities as good enough
to set the delinquent free and chopping the logic of
preponderant probability to punish marginal
innocents.”
(Emphasis Supplied)
56. The learned Amicus Curiae appearing for the prosecutrix/
victim has also submitted that the First Information Report
cannot be treated as an encyclopaedia, thus, testimony of the
witnesses are required to be relied upon unless they suffer from
exaggerations. Reference in this regard has been made to the
judgment rendered by the Hon’ble Apex Court in the case of
Sunil Kumar vs. State Government of NCT of Delhi, reported
in (2003) 11 SCC 367 and the one rendered in the case of
Animireddy Venkata Ramana & Ors. vs. Public Prosecutor,
reported in 2008(3) PLJR SC 453. It is also submitted that the
Hon’ble Apex Court has also laid down the mode and manner in
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which the testimony of a prosecutrix should be relied upon in a
judgment rendered in the case of Om Prakash vs. State of U.P.,
reported in (2006) 9 SCC 787, paragraphs no. 13 to 15 whereof
are reproduced herein below:-
“13. It is settled law that the victim of sexual assault is
not treated as accomplice and as such, her evidence does
not require corroboration from any other evidence
including the evidence of a doctor. In a given case even if
the doctor who examined the victim does not find sign of
rape, it is no ground to disbelieve the sole testimony of
the prosecutrix. In normal course a victim of sexual
assault does not like to disclose such offence even before
her family members much less before public or before the
police. The Indian woman has a tendency to conceal such
offence because it involves her prestige as well as
prestige of her family. Only in few cases, the victim girl
or the family members have courage to go before the
police station and lodge a case. In the instant case the
suggestion given on behalf of the defence that the victim
has falsely implicated the accused does not appeal to
reasoning. There was no apparent reason for a married
woman to falsely implicate the accused after scatting (sic
scathing) her own prestige and honour.
14. Of late, crime against women in general and rape in
particular is on the increase. It is an irony that while we
are celebrating women’s rights in all spheres, we show
little or no concern for her honour. It is a sad reflection
on the attitude of indifference of the society towards the
violation of human dignity of the victims of sex crimes.
We must remember that a rapist not only violates the
victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm in
the process. Rape is not merely a physical assault–it is
often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
96/315degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such
cases with utmost sensitivity. The courts should examine
the broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration of her
statement in material particulars. If for some reason the
court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend
assurance to her testimony, short of corroboration
required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of
the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestation. This position was
highlighted in State of Punjab v. Gurmit Singh.
15. A prosecutrix of a sex offence cannot be put on a par
with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot
be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness
under Section 118 and her evidence must receive the
same weight as is attached to an injured in cases of
physical violence. The same degree of care and caution
must attach in the evaluation of her evidence as in the
case of an injured complainant or witness and no more.
What is necessary is that the court must be conscious of
the fact that it is dealing with the evidence of a person
who is interested in the outcome of the charge levelled by
her. If the court keeps this in mind and feels satisfied that
it can act on the evidence of the prosecutrix, there is no
rule of law or practice incorporated in the Evidence Act,
1872 (in short “the Evidence Act“) similar to Illustration
(b) to Section 114 which requires it to look for
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
97/315corroboration. If for some reason the court is hesitant to
place implicit reliance on the testimony of the prosecutrix
it may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of
an accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of
each case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction
on her evidence unless the same is shown to be infirm
and not trustworthy. If the totality of the circumstances
appearing on the record of the case discloses that the
prosecutrix does not have a strong motive to falsely
involve the person charged, the court should ordinarily
have no hesitation in accepting her evidence. This
position was highlighted in State of Maharashtra v.
Chandraprakash Kewalchand Jain [(1990) 1 SCC 550].”
57. The other issue canvassed by the learned Amicus Curiae
is regarding relevancy of F.S.L. report and the medical
examination report. It is submitted that the evidence of the
prosecutrix would show that she had washed her clothes twice
with soap and water, hence obviously nothing could be found
during the course of F.S.L. examination. It is also submitted that
the incident had taken place in the intervening night of
06/07.02.2016, whereas the medical examination was held on
17.2.2016, hence such medical examination becomes irrelevant
on account of lapse of about ten days. Nonetheless, it is
submitted by referring to the said medical report dated
17.02.2016 that the Medical Board has finally opined that the
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possibility of rape cannot be ruled out. In this regard, it is also
submitted that even if the medical report either that of Dr.
Krishna or that of the Medical Board dated 17.02.2016, which
points towards the prosecutrix being used to sexual intercourse,
her hymen being old torn and there being no injury on her
private parts, is accepted on its face value, the same cannot lead
to the presumption that the victim is a promiscuous woman. In
this regard, various authorities of the Hon’ble Apex Court have
been referred to, which are enumerated herein below:-
i. Ramdev Singh (supra);
ii. Phool Singh (supra);
iii. Gurmit Singh & Ors. (supra);
iv. Pappu (supra);
v. State of Uttar Pradesh vs. Munshi, reported in (2008)
9 SCC 390;
vi. Lillu @ Rajesh and Another (supra).
58. At this juncture, it would be apposite to reproduce
paragraphs No. 10 and 11 of the Judgment rendered in the case
of Lillu @ Rajesh & Another (Supra), herein below:-
“10. This Court while dealing with the issue in State of
U.P. v. Munshi [(2008) 9 SCC 390] has expressed its
anguish and held that even if the victim of rape was
previously accustomed to sexual intercourse, it cannot be
the determinative question. On the contrary, the question
still remains as to whether the accused committed rape
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99/315on the victim on the occasion complained of. Even if the
victim had lost her virginity earlier, it can certainly not
give a licence to any person to rape her. It is the accused
who was on trial and not the victim. So as to whether the
victim is of a promiscuous character is totally an
irrelevant issue altogether in a case of rape. Even a
woman of easy virtue has a right to refuse to submit
herself to sexual intercourse to anyone and everyone,
because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone. A prosecutrix
stands on a higher pedestal than an injured witness for
the reason that an injured witness gets the injury on the
physical form, while the prosecutrix suffers
psychologically and emotionally.
11. In Narender Kumar v. State (NCT of Delhi) [(2012) 7
SCC 171] this Court dealt with a case where the
allegation was that the victim of rape herself was an
unchaste woman, and a woman of easy virtue. The Court
held that so far as the prosecutrix is concerned, mere
statement of the prosecutrix herself is enough to record a
conviction, when her evidence is read in its totality and
found to be worth reliance. The incident in itself causes
great distress and humiliation to the victim though,
undoubtedly a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well.
The Court further held as under:
“26. Even in cases where there is some material to
show that the victim was habituated to sexual
intercourse, no inference of the victim being a woman
of ‘easy virtues’ or a woman of ‘loose moral character’
can be drawn. Such a woman has a right to protect her
dignity and cannot be subjected to rape only for that
reason. She has a right to refuse to submit herself to
sexual intercourse to anyone and everyone because she
is not a vulnerable object or prey for being sexually
assaulted by anyone and everyone. Merely because a
woman is of easy virtue, her evidence cannot be
discarded on that ground alone rather it is to be
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100/315cautiously appreciated.
27. In view of the provisions of Sections 53 and 54 of
the Evidence Act, 1872, unless the character of the
prosecutrix itself is in issue, her character is not a
relevant factor to be taken into consideration at all.”
59. It is also contended by the learned Amicus Curiae that
absence of injuries on the private parts of the victim is not
always fatal to the case of the prosecution. In this regard
reference has been made to the following judgments:-
i. Ramdev Singh (supra);
ii. Phool Singh (supra);
iii. Chandraprakash Kewalchand Jain (supra);
iv. Lok Mal @ Loku (supra).
60. At this point, it would be apposite to refer to paragraphs
No. 26 of the Judgment rendered in the case of
Chandraprakash Kewalchand Jain (Supra), herein below:-
“26. The absence of marks of physical violence on the
prosecutrix is not surprising. According to her the
respondent had slapped her and threatened her with dire
consequences when she tried to resist him on both
occasions. Since she was examined almost 24 hours after
the event it would be too much to expect slap marks on
her person. It is, however, true that according to PW 12
Dr More there were no marks of injury on the body of the
respondent when he was examined on the 22nd itself at
about 8.45 p.m. While it is true that the version of the
prosecutrix is that she had tried to resist him, it must be
realised that the respondent being a strong man was able
to overpower her and take her by force. Besides, he was a
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101/315man in authority in police uniform. The prosecutrix was
alone and helpless. In the circumstances as pointed out
earlier the resistance would be considerably dampened.
But the evidence of PW 12 Dr More who examined the
respondent on the 22nd at 8.45 p.m. reveals that he had
noticed (i) absence of smegma around the glans penis,
and (ii) the frenum tortuous and edematous, indicative of
the respondent having had sexual intercourse within the
preceding 24 hours. However, absence of marks of
violence and absence of matting of pubic hair led the
witness to state that no definite opinion could be given
whether or not the respondent had sexual intercourse in
the last 24 hours. In cross-examination an attempt was
made to show that smegma may be absent in a man with
clean habits; that the frenum may be edematous if there is
friction with rough cloth and tortuousness of the frenum
could be due to anything that causes swelling of the skin.
The witness, however, said that he had not seen marks of
itching thereby negativing the suggestion. Be that as it
may, the evidence of this witness does show that there
was evidence suggesting the possibility of the respondent
having had sexual intercourse within the preceding 24
hours although the witness could not hazard a definite
opinion. Therefore, the non-committal opinion of this
witness cannot be said to run counter to the evidence of
the prosecutrix. It may be that the evidence as to
resistance may have been overstated, a tendency which is
generally noticed in such cases arising out of a fear of
being misunderstood by the society. That is not to say that
she was in any way a consenting party. She was the
victim of brute force and the lust of the respondent.”
61. It would also be appropriate to refer to paragraphs No. 13
of the Judgment rendered in the case of Lok Mal alias Loku vs.
State of UP (Supra), herein below:-
“13. Merely because in the medical evidence, there are no
major injury marks, this cannot be a reason to discard the
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
102/315otherwise reliable evidence of the prosecutrix. It is not
necessary that in each and every case where rape is
alleged there has to be an injury to the private parts of
the victim and it depends on the facts and circumstances
of a particular case. We reiterate that absence of injuries
on the private parts of the victim is not always fatal to the
case of the prosecution. According to the version of the
prosecutrix, the accused overpowered her and pushed her
to bed in spite of her resistance and gagged her mouth
using a piece of cloth. Thus, considering this very aspect,
it is possible that there were no major injury marks.”
62. Another issue which has been adverted to by the learned
Amicus Curiae is with regard to minor discrepancies in the
evidence of the prosecution being harped upon by the defence.
It is submitted that the same would have no adverse effect on
the case of the prosecution and to the said effect, various
Judgments rendered by the Hon’ble Apex Court have been
relied upon which are being enumerated herein below:-
i. Bharwada Bhoginbhai vs. State of Gujarat (supra);
ii. Sunil Kumar vs. State Govt. of NCT of Delhi, reported
in (2003) 11 SCC 367;
iii. Phool Singh (supra);
iv. Joy Devaraj vs. State of Kerala, reported in (2024) 8
SCC 102;
v. Chandraprakash Kewalchand Jain (supra);
vi. Munshi Prasad vs. State of Bihar, reported in (2002) 1
SCC 351;
vii. Edakkandi Dineshan @ P. Dineshan & Ors vs. State
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
103/315of Kerela, reported in (2025) 3 SCC 273.
63. The last issue canvassed by the learned Amicus Curiae for
the prosecutrix is that defective investigation does not falsify the
case of the prosecution and with regard to the same couple of
judgments rendered by the Hon’ble Apex Court have been
referred to, which are being enumerated herein below:
i. Phool Singh (supra);
ii. Gurmit Singh & Ors. (supra);
iii. R. Baiju vs. the State of Kerala, reported in 2025 SCC
Online SC 795;
iv. Edakkandi Dineshan @ P. Dineshan & Ors. (supra);
v. Dhanaj Singh vs. State of Punjab, reported in (2004) 3
SCC 654;
vi. Paras Yadav & Ors. vs. State of Bihar, reported in
(1999) 2 SCC 126;
64. Thus, it is submitted that the judgment of conviction and
order of sentence rendered by the learned Trial Judge does not
suffer from any infirmity and is required to be upheld.
65. The learned Senior Counsel for the appellant no. 1, Sri
Surendra Singh, in rejoinder has submitted that there is no shred
of evidence that sexual intercourse has taken place in between
the prosecutrix and the appellant of the first case. In this
connection reference has been made to a judgment rendered by
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the Hon’ble Apex Court in the case of Sham Singh vs. The
State of Haryana, reported in AIR 2018 SC 3976, paragraph No.
24 whereof is reproduced herein below:-
“24. We find that the trial court and the High Court have
convicted the accused merely on conjectures and
surmises. The Courts have come to the conclusion based
on assumptions and not on legally acceptable evidence,
but such assumptions were not well founded, inasmuch as
such assumptions are not corroborated by any reliable
evidence. Medical evidence does not support the case of
the prosecution relating to offence of rape.”
66. As regards the submission of the learned APP for the
State, to the effect that the appellant of the first case was not
arrested since he was M.L.A., it is submitted that at the time he
was identified by the prosecutrix, nobody was aware that he was
M.L.A., hence such submission is fit to be rejected.
67. Mr. Surendra Singh, has next submitted that even if
Exhibit-3 i.e. the provisional matriculation certificate of the
prosecutrix is considered to be a public document, the definition
of a document mentioned in Section 3 of the Indian Evidence
Act, 1872 (for short the ‘Act, 1872’) is vital, for the purposes of
determining the mode and manner of proving such a public
document. Section 3 of the Act, 1872 is reproduced herein
below:-
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
105/315“Document- Document means any matter expressed or
described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended
to be used, or which may be used, for the purpose of
recording that matter.”
68. Thus, it is submitted that any document includes both
“Public and Private” document. Reference has next been made
to Sections 61, 62, 64, 67, 74, 76 and 77 of the Act, 1872, which
are reproduced herein below:-
“61. Proof of contents of documents. — The contents of
documents may be proved either by primary or by
secondary evidence.
62. Primary evidence. — Primary evidence means the
document itself produced for the inspection of the Court.
64. Proof of documents by primary evidence.–
Documents must be proved by primary evidence except in
the cases hereinafter mentioned.
67. Proof of signature and handwriting of person
alleged to have signed or written document produced.
— If a document is alleged to be signed or to have been
written wholly or in part by any person, the signature or
the handwriting of so much of the document as is alleged
to be in that person’s handwriting must be proved to be in
his handwriting.
74. Public documents.–The following documents are
public documents: —
(1) documents forming the acts, or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and
executive, of any part of India or of the
Commonwealth, or of a foreign country;
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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(2) Public records kept [in any State] of private
documents.
76. Certified copies of public documents.–Every public
officer having the custody of a public document, which
any person has a right to inspect, shall give that person
on demand a copy of it on payment of the legal fees there
for, together with a certificate written at the foot of such
copy that it is a true copy of such document or part
thereof, as the case may be, and such certificate shall be
dated and subscribed by such officer with his name and
his official title, and shall be sealed, whenever such
officer is authorized by law to make use of a seal; and
such copies so certified shall be called certified copies.
77. Proof of documents by production of certified
copies.–Such certified copies may be produced in proof
of the contents of the public documents or parts of the
public documents of which they purport to be copies.
69. The learned Senior Counsel for the appellants has
submitted that Section 61 of the Act, 1872 provides that the
documents may be proved either by primary or by secondary
evidence and the same includes both private and public
documents. Similarly, Section 62 which deals with primary
evidence also includes both private and public document and
similarly Section 64 which deals with proof of document by
primary evidence also includes both public and private
documents. As far as Section 67 of the Act, 1872 is concerned,
the same provides for proving of a signature in case a document
is stated to be signed and for the said purpose, the signature on
the said document is required to be proved to be in the
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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handwriting of the said person. Thus, it is the submission of the
learned Senior Counsel that unless and until the signature is
proved, a document cannot be deemed to have been proved. As
far as Section 74 of the Act, 1872 is concerned, reference has
been made to sub-clause (2) thereof, which deals with public
records kept [in any state] of private documents and it is
submitted that Exhibit-3 would fall under the said clause
inasmuch as section 74 (1)(i) to (iii) would show that Exhibit-3
does not fall within the ambit of the same. Reliance has been
placed on Section 76 of the Act, 1872 to submit that in case
certified copies of public documents are produced, copies of
such documents should contain a certificate written at the foot
that it is a true copy of such original document or part thereof,
as the case may be, which should be dated and subscribed by
such officer, who is issuing the same with his name and his
official title as also should contain seal if such officer is
authorized by law to make use of a seal. It is stated that Section
77 of the Act, 1872 deals with proof of documents by
production of certified copy.
70. The learned Senior Counsel for the appellants has
contended that Exhibit-3 is definitely not a certified copy of its
original, nonetheless even if it is assumed that the same is an
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original copy, then also the signature appended over the same is
required to be proved, as per the provisions referred to
hereinabove in the preceding paragraphs, otherwise the
document shall not stand proved. In this connection, the learned
Senior Counsel has referred to the Sarkar’s Commentary on the
Law of Evidence, 16th Edition, Year- 2007, authored by Sudipto
Sarkar and V.R. Manohar and has drawn attention to the chapter
pertaining to Section 67 of the Act, 1872, relevant paragraphs
whereof are being reproduced herein below:-
“The production of a document purporting to have been
signed or written by a certain person is no evidence of its
authorship. Hence the necessity of rules relating to the
authentication of documents. i.e., proving their
genuineness and execution. Proof, therefore, has to be
given of the handwriting, signature and execution of a
document. In Stamper v. Griffin, 1856, 20 Ga 312, 320
(Am) BENNING, J, said:-
“No writing can be received in evidence as a genuine
writing until it has been proved to be a genuine one,
and none as a forgery until it has been proved to be a
forgery. A writing, of itself, is not evidence of the one
thing or the other. A writing, of itself, is evidence of
nothing, and therefore is not, unless accompanied by
proof of some sort, admissible as evidence”.
This section refers to documents other than documents
required by law to be attested. It says that the signature of
the person alleged to have signed a document (ie,
execution) must be proved by evidence that the signature
purporting to be that of the executant is in his
handwriting (see Venkatachala v. Thimmojamma, A 1959
SC 443 post) and the other matter in the document (i.e.,
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its body) must also be proved by proof of the handwriting
of the person or persons purporting to have written the
document. Execution is proved by the first (i.e., proof of
signature) and the genuineness of the document is proved
by the second (i.e., proof of handwriting), unless they are
admitted by the other side. The term “execution” is not
defined in any statute. It means completion, ie, the last
act or acts which complete a document and in English
law this is known as “signing, sealing and delivering.”
The ordinary meaning of executing a document is signing
it as a consenting party thereto [Manmatha v. Purna, 29
CWN 539, 552 post). Ss 67-73 deal with primary as well
as secondary evidence [Sheikh Karimulla vs. Gudar, A
1925 A 56: 82 IC 306]. As to the various modes of
proving the genuineness of a document, see ante section
47.
The execution of a document cannot be deemed proved
merely because it is proved in the sense of the definition
of “proved”. That definition in section 3 must be read
along with s 67 which requires that there must be
specified evidence that the signature purporting to be that
of the executant is in the handwriting of the executant.
Until this is proved the court cannot proceed to consider
whether execution is proved. In other words section 67
makes proof of execution of a document something more
difficult than proof of matter other than execution of a
document [Salaik v. Tamiz, 107 IC 564: A 1928 A 303].
Original of the public document must be proved in the
manner required by the provisions of the Act [C H Shah v.
S S Malpathak, A 1973 B 14]. If a document is marked by
consent it does not dispense with either the proof of the
contents of the document or the truth or otherwise of the
contents [Karuppanna v. Rajagopala, A 1975 M 257].
The fact that a document is exhibited only establishes that
it has been formally proved. But when the execution of
the document is challenged the scribe and the witnesses
should be examined. Failure to examine then will result
in an adverse inference being drawn [Bhaiyalal v. Ram
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Din, A 1989 All 130, 132]. As to proof of documents
required by law to be attested, see sections 68-70.”
71. Thus, it is submitted by the learned Senior Counsel for
the appellants that the execution of a document cannot be
deemed to have been proved merely because it is proved in the
sense of the definition of “proved” and definition of the word
‘document’, as postulated in Section 3 must be read along with
Section 67 which requires that there must be specific evidence
that the signature purporting to be that of the executant is in the
handwriting of the executant and until the same is proved, the
document does not stand proved. In this regard, reliance has
been placed on a judgment rendered by the Hon’ble Apex Court
in the case of Neeraj Dutta vs. State (Government of NCT of
Delhi), reported in (2023) 4 SCC 731, paragraph no. 60 whereof
is reproduced herein below:-
“60. Section 61 deals with proof of contents of documents
which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will
have to be proved in the manner laid down in Sections 67
to 73 of the Evidence Act. Mere production and marking
of a document as an exhibit by the court cannot be held to
be due proof of its contents. Its execution has to be
proved by admissible evidence. On the other hand, when
a document is produced and admitted by the opposite
party and is marked as an exhibit by the court, the
contents of the document must be proved either by the
production of the original document i.e. primary evidence
or by copies of the same as per Section 65 as secondary
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and is available, its contents must be proved by primary
evidence. It is only when the primary evidence is lost, in
the interest of justice, the secondary evidence must be
allowed. Primary evidence is the best evidence and it
affords the greatest certainty of the fact in question. Thus,
when a particular fact is to be established by production
of documentary evidence, there is no scope for leading
oral evidence. What is to be produced is the primary
evidence i.e. document itself. It is only when the absence
of the primary source has been satisfactorily explained
that secondary evidence is permissible to prove the
contents of documents. Secondary evidence, therefore,
should not be accepted without a sufficient reason being
given for non-production of the original.”
72. It is, therefore submitted that it is amply clear that in case
a document is produced as primary evidence, the same is
required to be proved in the manner laid down under Sections
67 to 73 of the Act, 1872, hence mere production and marking
of a document as an exhibit by the Court, as has been done in
the present case, cannot be held to be due proof of its content.
Reference has also been made in this regard to a judgment
rendered by the Hon’ble Apex Court in the case of R.V.E.
Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P.
Temple and Another, reported in (2003) 8 SCC 752, paragraph
no. 20 whereof is reproduced herein below:-
“20. The learned counsel for the defendant-respondent
has relied on Roman Catholic Mission v. State of
Madras [AIR 1966 SC 1457] in support of his submission
that a document not admissible in evidence, though
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We do not have any dispute with the proposition of law so
laid down in the abovesaid case. However, the present
one is a case which calls for the correct position of law
being made precise. Ordinarily, an objection to the
admissibility of evidence should be taken when it is
tendered and not subsequently. The objections as to
admissibility of documents in evidence may be classified
into two classes: (i) an objection that the document which
is sought to be proved is itself inadmissible in evidence;
and (ii) where the objection does not dispute the
admissibility of the document in evidence but is directed
towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because
a document has been marked as “an exhibit”, an
objection as to its admissibility is not excluded and is
available to be raised even at a later stage or even in
appeal or revision. In the latter case, the objection should
be taken when the evidence is tendered and once the
document has been admitted in evidence and marked as
an exhibit, the objection that it should not have been
admitted in evidence or that the mode adopted for
proving the document is irregular cannot be allowed to
be raised at any stage subsequent to the marking of the
document as an exhibit. The latter proposition is a rule of
fair play. The crucial test is whether an objection, if taken
at the appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and resort
to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party tendering
the evidence, for two reasons: firstly, it enables the court
to apply its mind and pronounce its decision on the
question of admissibility then and there; and secondly, in
the event of finding of the court on the mode of proof
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the evidence, the opportunity of seeking indulgence of the
court for permitting a regular mode or method of proof
and thereby removing the objection raised by the opposite
party, is available to the party leading the evidence. Such
practice and procedure is fair to both the parties. Out of
the two types of objections, referred to hereinabove, in
the latter case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for insisting
on formal proof of a document, the document itself which
is sought to be proved being admissible in evidence. In
the first case, acquiescence would be no bar to raising
the objection in a superior court.”
73. Thus it is submitted that at the very inception when the
provisional matriculation certificate was sought to be exhibited
as Exhibit-3, the defence had raised an objection, thus the
provisional matriculation certificate was marked as Exhibit-3
with objection. Therefore, it is submitted that considering the
law laid down by the Hon’ble Apex Court in the aforesaid case
of R.V.E. Venkatachala Gounder (supra), it is manifest that an
objection with regard to any document being exhibited by the
prosecution is directed towards the irregularity and insufficiency
of the mode and manner of proving the said document. Hence, it
is submitted that the prosecution was required to cure its defect
and should have proved the said Exhibit-3 in the manner as
postulated under the Act, 1872.
74. The other issue which has been adverted to by the learned
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Senior Counsel in his rejoinder is regarding the age of the
prosecutrix. It has been submitted by referring to a judgment
dated 30.10.2024, passed by a coordinate Bench of this Court in
Criminal Appeal (DB) No.550 of 2021 (Mannu Saddam @ Md.
Mannu Sadam vs. The State of Bihar), that it is the prosecution
which is required to prove the minority of the victim for the
purposes of application of POCSO Act, 2012 as also the
foundational facts of the alleged offence are required to be
proved by the prosecution, before the Court raises the
presumption under Sections 29 and 30 of the POCSO Act. It is
submitted by referring to paragraph no. 42 of the said judgment
that failure on the part of the prosecution to bring on record
admissible documents regarding age of the victim despite
availability/ feasibility of such documents would lead to the
Court drawing an adverse inference against the minority of the
victim. In the present case, it is submitted that even the opinion
of the Medical Board shows the age of the prosecutrix to be in
between 16 to 17 years. It is submitted that on this aspect
submissions have already been advanced earlier and the same
are reiterated, thus it is stated that there is no proof that the
prosecutrix is below the age of eighteen years, hence provisions
of the POCSO Act, 2012 shall not apply in the present case.
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75. As regards, the issue of reliability of the prosecutrix and
the issue of there being consistency in the written report, the
statement made by the prosecutrix under Section 164 Cr.P.C.
and her deposition as PW-2, the learned Senior Counsel for the
appellants has submitted that consistency is not a criteria for
adjudging the guilt of the accused persons. It is stated that if a
lie is repeated several times, the same would not become a true
fact and the actual facts will not change. Thus, it is required that
the conduct of a person making a statement should also be
considered along with the intervening circumstances, so as to
arrive at a just conclusion. In this regard reference has been
made to a judgment rendered by the Hon’ble Apex Court in the
case of Manek Chand @ Mani vs. The State of Haryana,
reported in AIR 2023 SC 5600 to submit that though it is true
that in a rape case the accused can be convicted on the sole
testimony of the prosecutrix, if it is capable of inspiring
confidence in the mind of the Courts, however if the version
given by the prosecutrix is unsupported by any medical
evidence or the whole surrounding circumstances are highly
improbable and belie the case set up by the prosecutrix, the
Court shall not act on the solitary evidence of the prosecutrix. It
has also been pointed out that in a recent judgment, it has also
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been held that not only the prosecutrix but the accused also has
a right for a fair trial. Thus, it is submitted that in case the
statement of the prosecutrix does not inspire confidence and
creates a doubt, the Court must look for corroborative evidence.
76. It is thus submitted by the learned Senior Counsel for the
appellants that as far as the present case is concerned, the
conduct of the prosecutrix has not been that of an innocent girl,
but that of a promiscuous girl. It is also stated that the
surrounding circumstances would show that even the family
members had no concern for the well-being of the prosecutrix,
which is manifest from the fact that though she had gone for a
birthday party on the evening of 06.02.2016 for one and a half
hours, nonetheless no efforts were made to either trace her or
seek police help till 9th of February, 2016. Another circumstance
which has been highlighted is that the case as put forth by the
prosecutrix is highly improbable, inasmuch as the prosecutrix
says that she was a virgin and was forcibly raped for one and a
half hours, however the medical evidence shows that neither
there was any injury on her private parts nor the hymen was
freshly torn but it was old torn and her vagina inserted two
fingers as also the finding of the Medical Board is that she was
used to sexual intercourse, thus the story as put forth by the
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prosecutrix to the effect that she is a virgin, is false.
77. The other circumstances which have been pointed out by
the learned Senior Counsel for the appellants is with regard to
the prosecutrix having left home to go to Bharao Par but instead
had gone to Ramchandarpur bus stand at Biharsharif, from
where she had travelled to Bakhtiyarpur where she had dinner
and thereafter, she had sat in a Bolero vehicle with three strange
persons, Radha Devi, Sulekha Devi and one 8 to 10 years old
girl and gone to Giriyak/Pathra English, nonetheless she had not
raised any alarm and had also not persuaded anyone to drop her
at her home. Thus, it is submitted that all the intervening
circumstances would show that the prosecutrix, who has
deposed as PW-2 is not a reliable witness, thus does not fall
within the ambit of a sterling witness, hence her testimony is not
fit to be relied upon for the purposes of adjudging the guilt of
the appellants.
78. It is next submitted that the first medical examination of
the prosecutrix was conducted by Dr. Krishna on 09.02.2016
itself, however the same has been withheld and suppressed by
the prosecution, inasmuch as the same is against them since
neither any sign of sexual intercourse nor any injury on private
parts was found qua the prosecutrix. In this regard the evidence
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of PW-15 at paragraph no. 73 has been referred to by the learned
Senior Counsel for the appellants. Reference has also been made
to Section 114, Illustration (g) of the Indian Evidence Act,
which is reproduced hereinbelow:-
“114, Illustration (g) That evidence which could be and is
not produced would, if produced, be unfavourable to the
person who withholds it;”
Thus in nutshell it has been submitted that either the story
as put forth by the prosecution is false or otherwise the
prosecutrix is a consenting adult.
79. The learned Senior Counsel for the appellants has
contended that as has already been pointed out, there are serious
contradictions in the statement made in the FIR, the statement
made by the prosecutrix under Section 164 Cr.P.C. and her
evidence by way of PW-2. Therefore, it is reiterated by the
learned Senior Counsel/Counsels for the appellants that the
judgment rendered by the learned Trial Court is full of errors
and therefore, the same is required to be set aside.
80. Besides hearing the learned Senior Counsel for the
appellant, the learned Additional Public Prosecutor for the State
as also the learned Amicus Curiae appearing for the prosecutrix/
victim, we have minutely perused the evidence both oral and
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documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
81. PW- 1 is the elder sister of the prosecutrix and she has
stated in her examination-in-chief that the incident dates back to
06.02.2016. She was told by the prosecutrix that the incident had
taken place at Giriyak. PW-1 (elder sister of the prosecutrix) has
stated that at the time of incident they were staying at
Udwantpuri Mohalla, Professor Colony at Biharsharif. She has
also stated that she has two younger sisters i.e. PW-3 and PW-2
(prosecutrix) as also a younger brother and all of them used to
stay at the said place for pursuing their education. The said
house had been taken on rent and adjacent to her house on the
southern side, the house of Sulekha Devi is situated where
Sulekha Devi, Chhoti Devi and their family members reside.
PW-1 has next stated that she has seen Pushpanjay, Tusi Kumari,
Sulekha Devi and Chhoti Kumari staying there and the mother of
Sulekha Devi, namely Radha Devi also used to come there
sometime. On 06.02.2016, Sulekha Devi and Chhoti Devi had
called the prosecutrix for going to a birthday party and had told
her that the birthday party is taking place at Bharaopar but the
prosecutrix had refused to go to the birthday party, however
upon them forcing her, she said that she would ask her sister,
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whereupon she had asked PW-1 as to whether she can go to the
birthday party or not but PW-1 had told her not to go to the
birthday party. Thereafter, Sulekha Devi and Chhoti Devi had
told PW-1 that they would return within two hours. Subsequently
at about 3-4 P.M. in the evening Sulekha Devi, Chhoti Devi, one
girl aged about 8-10 years, daughter of Chhoti Devi, namely
Tuktuk and the prosecutrix had left the house for going to the
birthday party, whereafter they had gone to Ramchandarpur bus
stand and told the prosecutrix to sit in the bus, whereupon the
prosecutrix had asked them that when they have to go to a
birthday party at Biharsharif itself, then why they are going
outside, upon which Sulekha Devi and Chhoti Devi told her that
they will pick up Nani and then go to the birthday party. All of
them had then sat in the bus and gone to Bakhtiyarpur. At
Bakhtiyarpur all of the above persons had stayed at Nani’s house
for 1-2 hours. The name of Nani is Radha Devi. In the meantime
all of them had eaten chicken, whereafter Sulekha Devi, Chhoti
Devi, Radha Devi, Pushpanjay, Tusi and the prosecutrix along-
with one 8-10 years old girl had come out of the house and gone
near the vehicle, which was parked there and then Sulekha Devi,
Radha Devi and 8-10 years old girl, as also the prosecutrix had
sat in the vehicle, but Chhoti Devi, Pushpanjay and Tusi did not
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sit in the vehicle. The prosecutrix then told Chhoti Devi that she
will not go but everyone made her sit in the vehicle.
82. PW-1 has stated that the prosecutrix had told her that the
persons sitting in the vehicle, namely, Sulekha Devi, Radha Devi
and 2-3 other persons, whom she does not recognize, did not let
her get down from the vehicle. They had left Bakhtiyarpur at
about 08:00 P.M., whereafter the vehicle was stopped at one
chimney Bhatta and from the said place, Sulekha Devi had made
a phone call to someone and had told that they are going to reach
soon and when the prosecutrix asked as to where they were, she
was told that they were at Giriyak, whereupon the prosecutrix
was taken to a house, which was four storied and white in colour.
The gate of the said house was opened by 3-4 guards and
Sulekha Devi, Radha Devi, 8-10 years old girl and the
prosecutrix were taken to the third floor of the said house, where
the light was put on by the guards. Thereafter, Sulekha Devi
asked the guard whether Sir has come or not, upon which the
guard disclosed that Sir has not come and would come after
some time. The guard had then ordered for chapati and
vegetables on phone. The prosecutrix had then asked that they
had to go to a birthday party but here there is no birthday party,
upon which Sulekha Devi told her that they have not come to
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birthday party but to meet Sir, who is a very good person and he
would ask some questions, which you should answer. After
sometime, the guard told Sulekha Devi that Sir has come,
whereupon Sulekha Devi went to the floor below the floor on
which they were seated and after some time she came back to the
3rd floor, where the prosecutrix and Radha Devi were sitting.
Sulekha Devi had then taken the prosecutrix to the room where
the said person was present.
83. PW-1 has further stated that the prosecutrix has further
told her that in the said room one 40-50 years old fat person was
drinking liquor, where the said person and Sulekha Devi told the
prosecutrix to sit and then the said person had offered drink to
them, whereupon Sulekha Devi started drinking but the
prosecutrix told her that she would not have any drink.
Thereafter, the said person told the prosecutrix to sit on the bed,
upon which the prosecutrix started crying and howling,
whereupon the said person had put cigarette in her mouth and
both the persons started torturing the prosecutrix and told the
prosecutrix that if she makes hulla (alarm), they would hand her
over to the guards, who will keep her in the room for the whole
night and would kill her. Thereafter, Sulekha Devi had tied the
mouth of the prosecutrix with her aanchal and made her sit on
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the bed, whereafter she removed her clothes as also caught hold
of both her hands and then the said person aged about 40-50
years old committed rape with the prosecutrix for 1-1½ hours,
while Sulekha Devi was continuously holding the prosecutrix.
Thereafter, Sulekha Devi and Radha Devi had taken the
prosecutrix to the bathroom for getting fresh and in between
Radha Devi had taken the 8-10 years old girl to the said person,
whereupon the said person had told that at the moment, she is
very young, whereafter Radha Devi and Sulekha Devi had taken
the prosecutrix to the third floor of the said house and told the
prosecutrix to sleep. The prosecutrix has also told PW-1 that
when they had reached the four storied house, it was about
11:00-12:00 P.M. in the night.
84. PW-1 has also stated that after the incident, the
prosecutrix was told on the third floor of the aforesaid house not
to disclose about the incident to anyone, since the said person is
an influential person and she would not be able to do anything.
Thereafter, Radha Devi and Sulekha Devi had threatened the
prosecutrix that since she has already lost her chastity, now
nothing would happen but she would get defamed and get
ruined. Thereafter, the prosecutrix kept crying and in the
morning at about 04:00 A.M., she heard Radha Devi and
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Sulekha Devi talking about exchange of money to the tune of Rs.
30,000/-, whereafter Radha Devi, Sulekha Devi, the said 8-10
years old girl and the prosecutrix had left the said place of
occurrence in a white colored vehicle. PW-1 has next stated that
the prosecutrix had then told her that the said house is situated at
a lonely place and there was LCD TV, table, chair, bed and a
window in the room where she was taken. The said people along
with the prosecutrix, after leaving the said house at about 04:00
A.M., had gone to Bakhtiyarpur, where they had stayed for 1-2
hours and then from Bakhtiyarpur, Chhoti Devi, Sulekha Devi,
daughter of Chhoti Devi, namely Tuktuk, the said 8-10 years old
girl along with the prosecutrix had left for Biharsharif. On the
way also Sulekha Devi and Chhoti Devi had threatened the
prosecutrix and had also lured her by offering money and mobile
as also told her not to disclose the incident to anyone, however if
she has friends then she can bring them also. The said persons
had then dropped the prosecutrix at her house on 07.02.2016 at
about 10:00 A.M. in the morning.
85. PW-1 has further stated that at the time when the
prosecutrix was dropped at her home, she was not present there,
however her sister, PW-3 was present there and at that time she
had gone to attend the coaching classes, from where she returned
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on 07.02.2016 at about 02:30 hours in the afternoon, whereupon
she saw that the prosecutrix was lying there and was crying. PW-
1 had then asked PW-3 as to why the prosecutrix was crying,
upon which she replied that she has told her that when sister,
PW-1 will come, she would disclose the things to her, however
after she had come back, she took bath and since then she is
crying. PW-1 is stated to have then asked the prosecutrix as to
what had happened and after some time she told that Sulekha
Devi and her family members have threatened her and asked her
not to disclose anything to anyone. However, after much
persuasion by PW-1, the prosecutrix had disclosed about the
incident to her in detail. Thereafter, PW-1 had called her father
on the said evening and told him that she is unwell, whereafter
her father came in the evening of 08.02.2016, whereupon PW-1
told him about the entire incident and upon hearing about the
said incident he became mad and started saying as to what would
happen since they have an agricultural background. Thereafter,
her father had told them to be courageous, since whatever had to
happen has already happened, however those who have
committed wrong will not be spared. On 09.02.2016 at about
10:00 in the morning, the prosecutrix, her father, namely
Jagarnath Prasad along with PW-1 had gone to the Mahila Police
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Station, where the prosecutrix had narrated the incident and PW-
1 had scribed the same, whereupon the prosecutrix had read the
same and put her signature over the same, since the prosecutrix
was at that moment of time not in a position to write herself,
PW-1 has identified the F.I.R. (written report), which is in her
writing and was read over to the prosecutrix, whereupon she had
made her signature which PW-1 has recognized and has said that
the prosecutrix had put her signature on the written report in her
presence.
86. PW-1 has stated that the written report bears her as also
her father’s signature, which has also been recognized by PW-1.
The written report has been marked as Exhibit-1, the signature of
the prosecutrix has been marked as Exhibit-1/A, signature of
PW-1 has been marked as Exhibit- 1/B and signature of the
father of PW-1 has been marked as Exhibit-1/C. PW-1 has stated
that her statement under Section 164 of the Cr. P. C. was
recorded in the Court. PW-1 has recognized her statement which
was read over to her, whereupon she had put her signature,
which has also been recognized by her and the same has been
marked as Exhibit-2. She had recognized the accused Chhoti
Devi, Tusi Devi, Radha Devi, Sulekha Devi, Pushpanjay and
Rajballabh Prasad, standing in the dock. The Court had put a
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question to PW-1 as to whether she had seen Rajballabh Prasad
@ Rajballabh Yadav earlier, to which PW-1 had answered that
she had not seen him earlier but after the incident she had seen
his face in the newspaper & T.V.
87. In her cross-examination PW-1 has stated that at the time
of occurrence the prosecutrix was student of Class X th. She has
also spelled out details of her family members and particulars
about the places where her sisters and brother study. PW-1 has
also stated that she and her sisters and brother also attend
coaching. PW-1 has next stated that her statement was recorded
by the Magistrate under Section 164 Cr.P.C., however she does
not remember whether in the said statement she has stated that
she used to visit the house of Sulekha Devi since she was having
good relations with her. PW-1 has stated in her cross
examination that in the house in which she was staying on rent
at the time of incident at Garhpar, two other tenants were also
staying. In one portion, one auntie, whose name she does not
know was staying while in the other portion, two girls were
staying in a room, one of whose name is Preeti Kumari but she
does not know the name of the other girl. The said two girls
were aged about 16-17 years, both were studying and out of
them one was in XIth Class while the other one was in XII th
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Class. PW-1 has said that she was having good relation with the
said two girls and they were knowing that the prosecutrix had
gone to attend a birthday party. PW-1 has also stated that when
the prosecutrix did not return back late in the evening, she had
not disclosed the said fact to the said two girls but had told
auntie about the same because she is like a guardian to her. PW-
1 has next stated in her cross examination that when the
prosecutrix did not return till late in the evening then she had
gone to the house of Sulekha Devi for enquiring, however on
the first occasion the house was locked but when she went for
the second time, ‘Mausi’ (maternal aunt) was present but she
does not know her name. PW-1 has also stated that when the
prosecutrix did not return till late in the evening, she got
mentally disturbed but she had not disclosed the said fact to her
father on the said day since she was very much disturbed and
the health condition of her mother was also not good.
88. PW-1 has also stated that she had not given phone to her
sister i.e the prosecutrix since Sulekha Devi was going along
with her as a guardian. PW-1 has next stated that her statement
was recorded by the Magistrate after 9 days i.e on 15.02.2016
and she was brought to the Court by the police. She had gone to
the Police Station on her own where she had met a police officer
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namely, Mridula madam and from there the police had taken her
to the Court. PW-1 has further stated in her cross examination
that in her statement made before the Magistrate, she had
disclosed that Sulekha and Chhoti had dropped the daughter of
Chhoti at Bakhtiyarpur and then had taken the prosecutrix by
Bolero vehicle to Giriyak along with 8-10 years old girl and
then they had gone to the 3rd floor of the house situated there.
The statement made by PW-1, under Section 164 Cr.P.C. before
the Ld. Magistrate, had also been put to her to draw her
response. In paragraph no. 60 of her cross-examination PW-1
has stated that when the prosecutrix did not return back to the
house till late in the night she was disturbed but she had not
informed anyone and on the next day in the morning at about
07-08 a.m. she had woken up, whereafter she had gone to the
coaching in between 9-10 a.m. PW-1 has also stated that she
does not remember whether on the said day she had seen the
landlord namely, Bishundeo Babu however, she stated that she
had not told him that the prosecutrix had not returned back to
home, nonetheless she had disclosed the factum of the
prosecutrix not returning back to home to aunty, before going to
the coaching class.
89. In paragraph no. 61 of her cross-examination, PW-1 has
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stated that till the time she was at her coaching, she had not
asked anyone as to whether the prosecutrix had returned back to
house or not and till then she had not told anyone or the police
about the prosecutrix having not returned back to the house. In
the evening, PW-1 rang her father but had not told him about the
prosecutrix having not returned back to home. PW-1 has also
stated that she had not taken the help of any doctor for treatment
of the prosecutrix but had taken help from auntie, who had
given 1-2 medicine. In paragraph no. 65 of her cross
examination, PW-1 has stated that on 10.02.2016, she had gone
to the Mahila Police Station in the afternoon along with her
father and the prosecutrix where they had met Mridula madam
who had made them sit there and while she had returned back to
home, her father and the prosecutrix came back after
investigation, in the evening, whereafter they had again gone for
investigation after one hour but did not return in the said night.
PW-1 has also stated that on 11.02.2016, father of PW-1 along
with prosecutrix had come back to the house before noon. In
fact, father of PW-1 had come from Sultanpur to Biharsharif
before noon but he did not come to the house and he returned
back to the house along with the prosecutrix in the evening of
the same day, after investigation at about 4-5 p.m. and in the
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night they had stayed there. In paragraph no. 68 of her cross
examination, PW-1 has stated that on 07.02.2016, when the
prosecutrix had returned back to her house, she had not gone to
the house of Sulekha Devi to enquire about the incident and she
had not disclosed about the incident to anyone except her father.
PW-1 has also stated in her cross-examination that she had
stated before the police that after the incident the accused told
the prosecutrix on the third floor of the said house not to
disclose about the incident to anyone since he (Rajballabh
Yadav) is a big person and she will not be able to do anything,
whereafter Radha Devi and Sulekha Devi had scared the
prosecutrix by saying that now her chastity had gone, hence
nothing will happen and you will be defamed as also ruined,
whereafter the prosecutrix kept on crying for the whole night
and in the morning at about 04:00 a.m. she saw that Radha Devi
and Sulekha Devi were talking about a deal of Rs. 30,000/-.
90. PW-2 is the prosecutrix who has stated in her examination
-in-chief that she has filed the present case and the occurrence
dates back to 06.02.2016, at about 03:00-04:00 in the evening.
At that time, she was staying on rent in the house of Bishundeo
Prasad situated at Professor Colony at Biharsharif. Altogether
four persons were staying there i.e., PW-1, PW-3, the brother of
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the prosecutrix and the prosecutrix. At that time, when the
prosecutrix was at her home, Chhoti Devi came there to call her
and after taking the prosecutrix to her house, she asked if she
would go to a birthday party, whereupon the prosecutrix refused
but Chhoti Devi started persuading her to go to the birthday
party and told her that if she did not go, she would feel bad,
whereafter Sulekha Devi also started pressurizing her and told
her that if she does not go, her friend will feel bad and she will
also not go. After much persuasion, PW-2 (prosecutrix) said that
she will have to ask her sister and when she asked her sister,
she told her not to go to the birthday party, whereafter Sulekha
Devi and Chhoti Devi both came and started persuading the
sister of prosecutrix, i.e PW-1 and told her that they would come
back by evening. After much persuasion, sister of PW-1 allowed
her to go, whereafter Chhoti Devi, Sulekha Devi, one 8-10 years
old girl and daughter of Chhoti Devi, namely Tuktuk took the
prosecutrix to Ramchandarpur where they told her to climb a
bus, whereupon the prosecutrix told them as to why they are
getting on to a bus, to which they said that they have to pick up
Nani who will also go to the birthday party. PW-2 had then
asked as to from where Nani is to be picked up then they said
that she has to be picked up from Bakhtiyarpur. Thereafter, the
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bus stopped at Bakhtiyarpur bus stand and all of them got down.
Chhoti Devi and the prosecutrix sat on one rickshaw, while
Sulekha Devi and the young child had sat on the other rickshaw.
Then they reached a house situated at Ranisarai, where Tusi
Devi, Radha Devi and Pushpanjay were present and they had
stayed there for 1-1/2 hours. At that place Nani and Chhoti had
served chicken to all of them and then they said that now they
will go to the birthday party and eat there. Thereafter, Sulekha
Devi asked her mother as to where the vehicle is standing,
whereupon the mother of Sulekha Devi told her that she would
go out and see, whereafter she went outside, saw and came back
and said that the vehicle is standing on the road. Then Sulekha
Devi, her mother, Chhoti Devi, Pushpanjay, Radha Devi, 8-10
years old child and the prosecutrix had gone near the vehicle
standing on the road. Three male persons were sitting in the said
vehicle. Thereafter, Radha Devi and 8-10 years old child had sat
in the vehicle and the prosecutrix was also told to sit there but
she said that she will not go if Chhoti Devi does not come along
with her, whereafter Sulekha Devi had sat in the vehicle and
then Tusi Devi, Pushpanjay and Chhoti told her that there is no
space in the vehicle, hence they would come by another vehicle.
91. PW-2 has further stated that the vehicle in which she was
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sitting had stopped at chimney bhatta after about 2-2 ½ hours
where Sulekha Devi had got down and talked over the mobile
phone and had wished the person on the other end and told him
that they would reach within 10 minutes and then she sat on the
vehicle. After 5-10 minutes of the vehicle having plied and
thereafter, having moved over the earthen road for some time,
the vehicle stopped at one four storied house, which had a red
colored gate and then one person came and opened the gate as
also wished Sulekha. The house was empty from within and
inside 4-5 guards were present, who also wished Sulekha,
whereafter Sulekha Devi took the prosecutrix and others to the
third floor of the said house and after climbing the stairs
Sulekha Devi started searching for the light switch and upon not
finding the same she said that it appears that the switch has been
changed since earlier it was present there, whereupon one
person came from down stairs and lit the light and told them to
sit there. On the 3rd floor the structure was like a hall where one
round table and one cot was present. Thereafter, one person
from downstairs had brought food. The prosecutrix had then
asked Sulekha Devi as to where they had come, then she said
that they had come to Giriyak, whereupon the prosecutrix asked
her as to why she has brought her to Giriyak since they were to
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go to a birthday party, whereafter she told her that they had not
come to a party but have come to meet one Sir who is very
good. Then Sulekha Devi had eaten food and also had forced the
prosecutrix to eat food. After eating food, Sulekha Devi and
Radha Devi said that Sir has not come, hence let us go to the
fourth floor, whereafter they had gone to the roof, where
prosecutrix was told that all the land situated nearby belongs to
Sir. Thereafter, prosecutrix was brought to the third floor and
then Sulekha Devi had gone downstairs from the third floor and
after returning back, she said that Sir has not come, hence she
should sleep. After some time, Radha Devi again went down
and after coming back she said that Sir has not come but after
some time one person came from downstairs and said that Sir
has come and is calling them, whereafter Sulekha Devi took the
prosecutrix to the second floor of the said building where one
person aged about 40-50 years was drinking liquor, who was fat
and black in color and he was sitting on a chair in a room and
two chairs were empty as also the room contained one bed and
one LCD as also fruits were kept in the room. The said person
asked Sulekha Devi to drink liquor, whereupon she started
drinking liquor and then the prosecutrix was also offered liquor
but she objected, whereupon Sulekha Devi told him that the
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prosecutrix does not drink liquor.
92. PW-2 has next stated that the said person then started
smoking cigarette and told the prosecutrix to smoke cigarette,
whereafter Sulekha Devi started smoking cigarette and then the
said person had inserted cigarette in the mouth of the
prosecutrix. In between, Radha Devi had arrived there along
with the 8-10 years old child and after looking at her the said fat
black person said that she is very small, whereafter Radha Devi
took the said child and went away. Sulekha Devi and the said
person had then asked the prosecutrix to sit over the bed,
whereupon she asked as to why she should sit on the bed,
whereafter Sulekha Devi and the said person had forcibly made
the prosecutrix sit on the bed leading to the prosecutrix
protesting by throwing her hand and legs but the said person had
caught her and then Sulekha Devi had undressed her as also had
caught hold of her and in the meantime the said person had
undressed himself. Upon the prosecutrix raising protest, they
said that they would hand her over to the servants who would
keep her for the entire night. Thereafter, the said fat and black
person committed rape with the prosecutrix and when she was
trying to protest, Sulekha Devi had caught her and had inserted
Anchal of Saari in her mouth. The said person had committed
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rape with the prosecutrix for 1-1½ hours and had then left her,
however the prosecutrix was not able to get up since she had no
energy left, whereafter Sulekha Devi had helped the prosecutrix,
made her wear clothes and had then taken her to the third floor,
where she was taken to the bathroom and was told to get fresh.
After the prosecutrix had got fresh and had come out of the
bathroom, she saw that Sulekha Devi and Radha Devi were not
present there but they came there after some time, whereupon
Sulekha Devi told her to sleep and then prosecutrix had lied
down but she was not feeling sleepy. In the meantime, Sulekha
Devi and Radha Devi started talking about a sum of Rs.
30,000/- and were saying that this time less amount has been
paid to them, however during Holi they will bring another girl
when they would get more money.
93. PW-2 has further stated that at about 4:00 A.M. in the
morning they had brought the prosecutrix by the vehicle
standing in the said house to Bakhtiyarpur and on the way they
had threatened her by saying that the said person is a big person,
hence nothing will happen to him but her prestige would be
dented, hence she should not disclose anything to anyone. When
they reached Bakhtiyarpur, the prosecutrix asked Chhoti Devi as
to why she had brought her to the said place for doing such
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things, whereupon Chhoti said that all these things keep
happening, her friends have also come and she can also bring
her friends. Chhoti also disclosed that they engage in such type
of activities and earn money, hence they are staying
comfortably. Thereafter, they came by auto to the bus stand.
Then Sulekha Devi, Chhoti Devi, 8-10 years old child and the
prosecutrix came to Biharsharif by bus and on the bus Chhoti
and Sulekha Devi told the prosecutrix not to disclose about the
incident to anyone, nonetheless asked her whether she wants
money and mobile phone. Thereafter, they reached
Ramchandarpur bus stand situated at Biharsharif and from there
they came to Professor Colony by Rickshaw, where the
prosecutrix was dropped at her house. At the time when the
prosecutrix came back to her house, her sister, PW-3 and brother
were present there and when she was crying, her sister asked her
as to what had happened but she did not disclose anything and
then she took bath and washed her clothes. By then it was time
to go for tuition, hence sister of the prosecutrix asked her to go
for tuition but she said that she would not go because she does
not want to study and instead, she would prefer dying. In the
evening, her sister, PW-1 had come and after persuading the
prosecutrix to disclose as to what had happened, the prosecutrix
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had told her about the entire incident, whereafter her sister also
started crying and became nervous and in the night sister of the
prosecutrix had called her father and told him that the
prosecutrix is ill, whereupon father of PW-2 came in the
evening of 08.02.2016, when the sister of PW-2 told her father
about the entire incident and upon her father asking her, she had
again narrated the entire incident to her father, after which her
father started crying and became nervous. Then the prosecutrix
along with her father and sister (PW-1) had gone to the Police
Station where the police had given her a plain paper and told her
to write about the incident and give it, whereafter the
prosecutrix narrated the incident and sister (PW-1) had written
down the same. PW-2 has identified the written report, penned
in the writing of her sister. The prosecutrix has also stated that
after her sister had written the written report, she had read it and
finding the same to be correct, she had made her signature over
the same. In fact, her father and sister had also signed the
written report of the prosecutrix which she has recognized and
the same has already been marked as Exhibit-1. Thereafter, the
written report was handed over to the Officer-in-Charge, Mahila
Police Station, over which the police personnel had written
something and then had made enquiry from the prosecutrix. The
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prosecutrix was then sent along with the police to the hospital,
whereafter her medical examination was conducted at the Sadar
Hospital and after coming out of the hospital she saw her sister
and father, whereupon they had gone to the Police Station.
94. The prosecutrix has further stated that her statement was
recorded in the Court by a Lady Judge, which she has
recognized upon being shown to her as also she has stated that
the same bears her signature, which has also been recognized by
her and over the same she had written- “read and found the
same to be correct”. The inscription made by the prosecutrix on
the statement made by her under Section 164 Cr.P.C. to the
effect “read and found to be correct” as also the signature made
by her over the same has been marked as Exhibit-2/A. The
prosecutrix was then taken to the Police Station, from where she
had gone to her house. PW-2 has further stated that on
10.02.2016, she was called for investigation and she had gone to
the place named by her, along with the police. They had gone to
Giriyak, where search was made extensively but no such four
storied house was found, whereafter in the evening they had
returned back to the police station and from there to home. On
11.02.2016, the prosecutrix was again called for investigation
and then she had gone along with the police for investigation,
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whereafter search was made at Giriyak but after some time they
had gone ahead of Giriyak and there the prosecutrix had
recognized the Chimney Bhatta where she had stopped
alongwith Sulekha Devi. Thereafter, they had moved onward
over the earthen road and after going ahead for some distance
she had recognized the four storied house. After moving ahead
for some distance, she had seen the said fat black person
strolling there, who had committed rape with her, whereafter she
had told the police accompanying her about the incident. They
had then returned to the road, where the police had asked the
people present there about the owner of the said house,
whereupon they had said it belongs to Rajballabh Prasad @
Rajballabh Yadav, who is M.L.A. and then they had disclosed
the name of the village to be Pathra English, Nawada. After
going ahead for some distance, the prosecutrix had seen the said
person in a poster and then she told the police, by pointing
towards the poster that he is the person and then they had gone
to the Biharsharif Police Station. PW-2 had recognized Sulekha
Devi, Chhoti Devi, Radha Devi, Pushpanjay, Rajballabh Yadav
and Tusi Devi who were standing in the dock. PW-2 had
submitted her 10th class provisional certificate, in which her date
of birth has been shown as 04.01.2000, which has been marked
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as Exhibit-3 with objection.
95. In her cross-examination, PW-2 has stated that she does
not remember as to whether the provisional certificate submitted
today was shown by her to the police or not. PW-2, has further
stated in her cross-examination that it is wrong to say that she
was neither taken by someone to the house and place where the
incident had taken place, about which she has disclosed in her
statement made before the Court nor any such incident had taken
place and on the contrary conspiracy was hatched by the police
officers at the instance of the political opponents of Rajballabh
Prasad @ Rajballabh Yadav and she had then come to the Court.
PW-2 has next stated that she had stated before the police that
when she was not able to get up after the incident, since she was
having no strength in her body, then Sulekha Devi had made her
stand up and had also made her wear the clothes. In paragraph
no. 32 of her cross-examination, PW-2 has stated that in her re-
statement made before the police officer, she had said that while
going from the place of occurrence to Bakhtiyarpur, the accused
were telling her that he (Rajballabh Yadav) is a big person and
nothing would happen to him, however her reputation will be
damaged. She has also stated that in the said statement she had
also said that when she came to Bakhtiyarpur, she asked Chhoti
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that she had brought her for getting such things done, whereupon
she said that all these things keep happening and nothing will
happen as also she said that her friends had also come and she
should also bring her friends, whereafter she also told her not to
tell her mother and father at her home about the said incident and
they are engaged in such type of work, from which they earn
money and that is why they live comfortably. She also stated that
thereafter, they came on an auto to the bus stand and she,
Sulekha Devi, Chhoti and the said 08-10 years old girl came to
Biharsharif by bus.
96. PW-2 has stated that she had also stated in her said
statement that she along with Chhoti Devi had boarded one
rickshaw and on the other rickshaw, Sulekha Devi and the said
08-10 years old girl were sitting. She has next stated in her
statement that on the rickshaw, Chhoti Devi was telling her that
after going home she should take bath and wash her clothes,
whereafter they had left her at home. In paragraph no. 39 of her
cross-examination, PW-2 has stated that she had started her
studies at the Primary School, Sultanpur from the third-fourth
class and on the date of occurrence, she was enrolled in another
school i.e. High School at Rahui but she did not use to go there
regularly for studying and was staying at Biharsharif since 4-5
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months prior to the incident while her both elder sisters and
brother were staying at Biharsharif from few days back and she
had come, thereafter. She has also stated that she had come to
Biharsharif along with her father and along with him she had
gone to the coaching of Subodh Sir and got herself enrolled
there. She has next stated that she used to go alone to her school
at Rahui sometimes. She has also stated that while staying at
Biharsharif, she did not use to go to market or any other place
and she used to only go from her residence to Subodh Sir. In
paragraph no. 40 of her cross-examination, PW-2 has stated that
she is not having any knowledge of other mohallas of
Biharsharif. She had asked Chhoti Devi and Sulekha Devi as to
where they have to go, whereupon they had said that they have
to go to Bharaopar, however, before going she was not knowing
as to how much time it would take to go to Bharaopar. She has
next stated that while going by rickshaw to Ramchandarpur, it
did not come to her mind that on the way Bharaopar is written
anywhere or not. She has also stated that before the incident she
had not gone to Ramchandarpur Bus Stand. PW-2 has also stated
in her cross-examination that at the time the Bus had left
Ramchandarpur Bus stand on the date of incident at about 4:00-
4:15 p.m., Chhoti Devi and Sulekha Devi were having mobile
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but she was not remembering the mobile number of her sister,
hence she had not asked them to call her sister over the mobile
phone. In fact she was neither remembering the mobile number
of her father nor that of her neighbours nor that of any relative.
97. PW-2 has next stated in her cross-examination that at the
house at Bakhtiyarpur, where she had gone, they had eaten food
normally and there was no tension but there she had asked
Sulekha and Chhoti that if they were having her sister’s mobile
number, they should call her but they said that they don’t have
her number. In paragraph no. 41 of her cross-examination, PW-2
has stated that she had sat in the middle row of the vehicle in
which she had gone to Bakhtiyarpur along with Sulekha and
Radha Devi. One male person was sitting beside Radha Devi and
in the back row nobody was sitting while in the front, apart from
the driver one more person was sitting there and the said persons
told her that they are going to a birthday party at Biharsharif.
She has stated that she does not know that vehicle can go from
Bakhtiyarpur to Giriyak via Biharsharif. She has also stated that
after starting from Bakhtiyarpur, she did not know as to on the
way which places had passed by, however she was awake in the
vehicle. She has also stated that she was not able to know as to
whether the way through which she had gone by bus from
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Biharsharif to Bakhtiyarpur was the same way through which
they had returned because she could not see anything outside
through the glass. She has stated that it had taken 1 – 1½ hours
to go to Biharsharif from Bakhtiyarpur and while returning from
Bakhtiyarpur, she had asked the females sitting there as to when
they would reach Biharsharif, whereupon Sulekha Devi told her
that they are going to reach very soon, however the vehicle kept
on moving for half an hour, thereafter and during the said half an
hour she kept on asking them about reaching Biharsharif,
whereupon they said that since they were taking a different
route, delay was taking place. The vehicle had then stopped
directly at Chimney, after leaving Bakhtiyarpur but on the way
no railway crossing was seen by her and when the vehicle had
stopped at the Chimney she kept sitting in the vehicle and only
Sulekha Devi had alighted from the vehicle and gone outside
while other people were sitting inside the vehicle and it was
calm outside at the Chimney, however she cannot say whether
the Chimney was open or not or surrounded by boundary.
98. PW-2 has next stated that by that time she could not know
as to whether she is at Biharsharif or she has crossed Biharsharif,
however the vehicle left that place after 5-6 minutes and the
vehicle had stopped outside the house about which she has told
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earlier but the vehicle did not go inside, even after the gate was
opened. PW-2 has also stated that when they had proceeded from
the Chimney, Sulekha Devi had told her about the board of
Giriyak, however she could not know as to whether they have
crossed Biharsharif or not and she thought that after crossing
Giriyak, they would reach Biharsharif. PW-2 has also stated in
her cross-examination that her sister was not knowing their
(accused) number, hence her call had not come, however after
she had gone to the said four storied house in question, she
sensed that those people have not brought her to the birthday
party and while she was enquiring from Sulekha Devi, she felt
that all the persons present there belonged to that place, thus she
neither raised any hulla (alarm) nor made any protest. In
paragraph no. 43 of her cross-examination, PW-2 has stated that
though her sister had asked Sulekha Devi and Chhoti Devi about
the name of the friend in whose birthday party they were going,
they said that they have neither seen their friend nor they
recognize them. In paragraph no. 46 of her cross-examination,
PW- 2 has stated that the police had taken her to the house at
Bakhtiyarpur for investigation. In paragraph no. 47 of her cross-
examination, PW-2 has stated that the police had not taken her
inside the house where wrong was committed with her. In
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paragraph no. 49 of her cross-examination, PW-2 has stated that
firstly she went inside the room in which the accused was sitting
and drinking liquor and had sat there on a chair where she kept
sitting on the chair for 10-15 minutes and while she was sitting
on the chair, the accused had put a cigarette in her mouth. She
has stated that before entering into the said room she did not
suspect that any wrong will be committed with her. Thereafter,
Radha Devi had brought the said small girl in the room and had
said something to the accused, whereupon he said that she is
small at the moment, whereafter the prosecutrix suspected that
something wrong might happen with her and then she got up
from the chair and tried to come out. She has also stated that
when the accused was putting cigarette in her mouth, he had held
one of her hands to which she had objected by trying to remove
the hand of the accused from her hand, however she neither used
her nail nor bit the accused by her teeth because Sulekha Devi
was telling her not to make noise.
99. In paragraph no. 50 of her cross-examination, PW-2 has
stated that just after stuffing cigarette in her mouth, the accused
while holding her hand had taken her on the bed, however she
did not remove the hands since Sulekha Devi and Rajballabh
Yadav were holding her hands. She also did not use her legs,
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however on account of holding of her hands she was having pain
in her arms. In paragraph no. 51 of her cross-examination, PW-2
has stated that when Sulekha Devi had removed her clothes from
her lower portion, she had kicked by her legs. She has also stated
that she had not received any injury on account of the accused
having held her hands. She has also stated that while she was
objecting to her clothes being removed, her clothes did not get
torn. In paragraph no. 54 of her cross-examination, PW-2 has
stated that during the entire occurrence, Sulekha Devi had
stuffed cloth in her mouth and was holding it, leading to she
being suffocated, however she did not become unconscious. In
paragraph no. 56 of the cross-examination, PW-2 has stated that
after being raped, she was immediately lifted from the bed by
Sulekha Devi and she had made her wear clothes. Thereafter,
Sulekha Devi had taken her to the bathroom at the third floor
where she had freshened up, washed her face and hands as also
washed her blood-stained clothes and had also washed blood
stains from the salwar suit and from her body, however she has
stated that blood was not present over her Salwar. In paragraph
no. 57 of her cross-examination, PW-2 has stated that in the
morning when she left for Bakhtiyarpur, she could not know as
to whether the way through which she was going was the same
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through which she had come. She has also stated that in the
morning while sitting in the vehicle or leaving the place on the
vehicle in question, she did not raise any alarm because no
person was present there. She has next stated that while
returning, apart from the driver sitting in the vehicle, two women
and one small girl were also sitting. PW-2 has stated that she,
Radha and Sulekha and the said small girl were sitting in the
middle row and on the way, she did not see any board of familiar
place because at that time she was having headache and there
she could know about only one place i.e. Bakhtiyarpur, however
she could not know about other places.
100. PW-2 has next stated in paragraph no. 58 of her cross-
examination that she had not returned back by the vehicle by
which she had gone to the place of occurrence but she had
returned back by another vehicle, being driven by a different
driver, however she does not remember the registration number
of the vehicles in question. In paragraph no. 59 of her cross-
examination, PW-2 has stated that after getting down at
Bakhtiyarpur, she had not raised any hulla (alarm) because she
had been severely threatened in the vehicle. She has also stated
that she had come from the house situated at Ranisarai on an
auto along with Sulekha and Chhoti to the bus stand and the said
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small girl was also along with them. In the auto also she did not
disclose about the incident to the auto driver and did not tell him
to go to the police station. She has next stated that while coming
from Bakhtiyarpur to Biharsharif, she had not disclosed about
the incident to any staff or passenger of the bus because at that
time Sulekha Devi and Chhoti Devi were talking about giving
mobile and money to her as also were threatening her. She had
also not raised hulla (alarm) at the bus stand because nobody
known to her was present there. In paragraph no. 60 of her cross-
examination, PW-2 has stated that after returning home she had
gone to the bathroom where she had washed her clothes and
after washing the clothes the blood stains over the same had
been removed inasmuch as she had used soap to wash the
clothes. In paragraph no. 68 of her cross-examination, PW- 2 has
stated that on 09.02.20216, police had not come to her house at
Garhpar but the police had come to her house on 10.02.2016. In
paragraph no. 70 of her cross-examination, PW-2 has also stated
that on 10.02.2016 the Police officer took her to Giriyak, after
she had disclosed about the said place, however the police
vehicle did not stop at Giriyak Police Station but she was taken
to Giriyak Bazar for investigation and then to the main road at
Giriyak but she could not find any four storied house nor any
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three storied house.
101. In para no. 71 of her cross-examination, PW-2 has stated
that on 11.02.2016 police had taken her from the police station to
the main road situated at Giriyak and after travelling on the main
road of Giriyak for some time, PW-2 had shown the way to the
police and taken them to the place where lot of Chimneys were
present but the police did not make any enquiry there. In
paragraph no. 72 of her cross-examination, PW- 2 has stated that
the police personnel had made enquiry from 2-4 persons while
sitting in the vehicle. In paragraph no. 73 of her cross-
examination, PW- 2 has stated that she had subsequently shown
the chimney to the police where she was brought and there they
had stayed for 10-15 minutes. In paragraph no. 74 of her cross-
examination, PW-2 has stated that the police had enquired from
the people near the Chimney about the house regarding which
she had given details to the police but nobody could tell about
the said house. The police had also made enquiries in the market
about the four-storied house. Thereafter, police vehicle had gone
to the road situated in front of the said house and had stopped at
a short distance from the door of the said house and then it had
moved ahead and had again stopped before reaching the door, at
a distance of 40-50 feet prior to the door, where she had seen the
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accused strolling at a distance of 2-3 feet after the door. After
identifying the said person (accused) and the house the vehicle
had turned immediately and at that time no other persons were
present there but were moving behind. From there, the police
vehicle had, after taking a turn, reached three corned road
(Tiraha) and enquiry was made by the police from the people
present there. On the way back it took 1-2 minutes to come on
the main road from the Chimney and at that time it was 4:00-
4:15 in the evening from where they had gone to Nawada, where
they reached at around 5:00-5:30 in the evening and then they
had returned back to Biharsharif Mahila Thana at around 7:00-
7:30 in the evening.
102. In paragraph no. 76 of her cross-examination, PW-2 has
stated that on 13.02.2016 she had gone to the police station with
her father and sister at around 10:30 in the morning where senior
police officials had come and in their mobile phone, the photo of
the accused was loaded which was also shown to her. On the
mobile phone she was shown photographs of 4-5 persons and the
entire event was being video graphed, C.D. whereof has also
been produced in the Court which has been marked as “X” for
identification. In paragraph no. 89 of her cross-examination,
PW-2 has denied that on the date of occurrence her age was
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more than 18 years and that she has deliberately disclosed her
age to be less and that in the school certificate also she and her
guardian have wrongly mentioned the age. In paragraph no. 91
of her cross-examination, PW-2 has stated that it is wrong to say
that the Mb. No. 7856940431, mentioned in the FIR belongs to
her and used to remain with her and on the date of occurrence i.e
on 06.2.2016 and 07.02.2016 the said mobile was with her as
also she had talked with other people on the said day. In
paragraph no. 97 of her cross-examination, PW-2 has stated that
on 06.02.2016, when she had gone through the earthen road to
the house where the said occurrence had taken place, at that time
the road was lonely and all the shops were closed as also it was a
dark night and on account of it being dark she could not see as to
whether in between the earthen road and nearby the house where
the occurrence had taken place, any other house was situated or
not. In paragraph no. 100 of her cross-examination, PW-2 has
stated that on 07.02.2016 she had only enquired from Chhoti
while returning from the place of occurrence to Bakhtiyarpur,
however she had neither engaged in any assault nor had
quarrelled with her. In paragraph no. 101 of her cross-
examination, PW-2 has stated that upon returning to her house
from Biharsharif, she did not disclose about the occurrence to
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her second elder sister since she was thinking that when her
elder sister would come, she would tell her as also she was
crying profusely and she did not want to narrate the same
incident several times, hence she had told both her elder sisters
about the said occurrence when they had come together.
103. In paragraph no. 105 of her cross-examination, P.W. 2 has
stated that in the matric examination, she has secured 62% and
the said examination had started from 12.3.2016 and ended on
17/18.03.2016, whereafter practical examination was held. PW-2
has also stated that she is not married and prior to the said
incident no injury much less major injury had taken place qua
her and prior to the said incident no physical atrocity or incident
of rape had taken place with her. In paragraph no. 118 of her
cross-examination, PW-2 has stated that she does not know the
name of the husband of Sulekha Devi and she has not named the
husband of Sulekha Devi, namely Arun Kumar in the FIR. In
paragraph no. 119, PW-2 has stated that she was knowing
Pushpanjay, since 1-2 months prior to lodging of the said case.
104. PW-3 is the sister of the prosecutrix and she has stated in
her evidence that the prosecutrix is her younger sister and the
occurrence had taken place on 06.02.2016 at about 4 p.m. in the
evening when she was at her rented house situated at
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Udwantpuri, Garhpar, Professor Colony. PW-3 is stated to be
staying along with her elder sister, i.e. PW-1, the prosecutrix and
brother. PW-3 has further stated that Sulekha Devi and Chhoti
had come at her room and had said that they have to go to
birthday party, however the prosecutrix had refused to go,
whereafter Chhoti had insisted, whereupon the prosecutrix had
asked her sister and then PW-1 had given permission to her.
Thereafter, the prosecutrix at around 4 p.m. in the evening along
with Sulekha Devi, Chhoti and one small child had left the
house. On the said night the prosecutrix had not returned back to
home. On 07.02.2016 at about 10:00 A.M. in the morning, the
prosecutrix returned back and had started crying, whereupon she
asked her as to what is the matter, whereafter she told that when
PW-1 comes, she would disclose. The prosecutrix had then taken
bath and cleaned her clothes and then PW-1 had come and asked
her as to why she was crying, whereupon the prosecutrix told her
that Sulekha had not taken her to birthday party but had taken
her to Ramchandarpur bus stand, made her sit in a bus and then
taken her to Bakhtiyarpur to her mother’s place where
Pushpanjay, Radha Devi and Tusi Devi were present and then
Radha Devi had offered chicken to all the people present there
which they had eaten. Thereafter, the prosecutrix was made to sit
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in a Bolero vehicle in which three persons were sitting from
before and then Sulekha Devi, Radha Devi and the small child
had also sat in the said vehicle. The vehicle had then stopped at
one Chimney bhatta, whereafter Sulekha Devi got down from
the vehicle and made a call and then they had reached one white
colored, four storied building, where the prosecutrix was taken
by Sulekha Devi to the 3rd floor of the said building, where they
ate chapati and vegetable and slept, thereafter. At about 12 in the
night, the prosecutrix was taken by Sulekha Devi to the 2 nd floor
of the said building where in a room one fat and black colored
person, aged about 40-50 years was sitting, who was wearing
Kurta-Pajama and was drinking liquor. Thereafter, Sulekha Devi
had wished the said person, whereupon the said person had told
them to sit there and asked Sulekha Devi to drink liquor,
whereafter Sulekha Devi started drinking liquor. The said person
had also asked the prosecutrix to drink liquor but she had
refused. Thereafter, Sulekha Devi had made the prosecutrix sit
on the bed and then the said black person, who was smoking
cigarette had also sat on the bed and had told the prosecutrix to
smoke cigarette but she had refused and then Sulekha Devi had
removed the salwar of the prosecutrix and caught hold of her as
also put a cloth in her mouth and then the said fat person had
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raped her for about one hour. Sulekha Devi had then taken the
prosecutrix to the 3rd floor, where Sulekha Devi was given Rs.
30,000/-, which the prosecutrix had seen and then on 07.2.2016,
the prosecutrix was left at her house at Biharsharif at about 10
a.m. in the morning.
105. PW-3 has further stated that after the incident, she came
to know about the person who had committed rape with the
prosecutrix, who is MLA of Nawada, namely Rajballabh Prasad
@ Rajballabh Yadav as also she came to know about the same
from the newspaper and television. PW-3 had recognized Tusi
Devi, Radha Devi, Sulekha Devi, Chhoti Devi, Pushpanjay and
Rajballabh Prasad @ Rajballabh Yadav, who were standing in
the dock. PW-3 has stated that the prosecutrix had filed a case
with the police and her statement was also recorded by the police
and the Court. PW-3 has recognized the statement made by her
before the Court under Section 164 Cr.P.C, which has been
marked as Exhibit-2/b and she has also recognized her signature
made over the same, which has been marked as Exhibit 2/c. In
paragraph no. 11 of her cross-examination, PW-3 has stated that
at her house there are two mobile phones, one is with her father
and the other one is with her elder sister, i.e. PW-1, however she
does not remember sister’s mobile number but her father’s
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mobile number is 9798206864. In paragraph no. 13 of her cross-
examination, PW-3 has stated that on 06.02.2016, Sulekha and
Chhoti had come together to her room and had stayed there for
5-6 minutes and had again come after 10 minutes, whereafter
they had taken her sister i.e. the prosecutrix along with them.
PW-3 has also stated in her cross examination that when the
prosecutrix had not returned back to her house, her sister had
gone to the house of Sulekha Devi for inquiry at around 8-9 P.M.
in the night and after she returned, they had slept. On the next
day morning, PW-3 had met other tenants but she did not talk
with them regarding the prosecutrix either going or not returning
back. When the prosecutrix had returned back nobody had come
along with her, however she stood in the room and started
crying, whereafter she had continued crying for half an hour,
whereupon she went to the bathroom and came after one hour.
106. PW-3 has stated that she had seen blood stains on her
clothes, however when she had asked the prosecutrix about the
blood stains, she did not say anything. After coming out of the
bathroom, the prosecutrix had spread the washed clothes on the
roof. PW-3 has said that though she was apprehending that some
wrong has been committed with the prosecutrix but she did not
ring her father, however when her sister came back to the house,
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the prosecutrix disclosed everything about the incident,
whereupon the sister became agitated but neither they went to
the house of Sulekha Devi nor to the Bihar Police Station,
though the same is at a distance of 200-300 yards as also they
did not ring either their father or any other relation, immediately
after hearing about the incident. On that day, after 3-4 hours of
hearing about the said incident, telephone call was made to the
father of the prosecutrix but he was not told about the incident
and they had called him by saying that (PW-1) was ill. PW-3 has
further stated that she along with her sister, father and the
prosecutrix had gone to the Mahila Police Station for lodging the
case and after 15.02.2016, two female constables used to guard
their house. In para no.63 of her cross examination, PW-3 has
stated that birthday of the daughter of Chhoti, namely Tuktuk
was celebrated on 30.01.2016, wherein Sulekha Devi and Chhoti
had called her, the prosecutrix and her sister but they had not
gone to the said birthday party and in fact the prosecutrix had
also not gone there.
107. PW-4 is the father of the prosecutrix, who has said in his
examination-in-chief that the prosecutrix is his younger daughter
and he has two other daughters namely, i.e. PW-1 and PW-3 as
also he has got one son who all live in the house of Vishundeo
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Prasad on rent at Udwantpuri, Professor Colony, Biharsharif.
PW-4 has further stated that on 07.02.2016, PW-1 had rang him
and called him, whereafter he had reached Biharsharif in the
evening of 08.02.2016 and upon reaching there, PW-1 had
narrated the incident, whereafter the prosecutrix had also
narrated the incident while crying and she had told him that
Sulekha Devi, who is the landlady of the house situated at the
back had asked her to come to Bharaopar, Machhli Mandi on the
pretext of going to a birthday party but instead of going to
Machhli Mandi, the prosecutrix was taken to Ramchandarpur
Bus stand, from where they had caught a bus and gone to
Baktiyarpur, where they had gone to one house where a vehicle
was called for and then the prosecutrix was made to sit in the
said vehicle in which Sulekha Devi, Radha Devi along with one
8-10 years old girl had also sat, while three male persons were
already sitting from before in the said vehicle. Chhoti had then
told the prosecutrix that she should proceed ahead as she would
come by another vehicle. The prosecutrix was taken towards
Giriyak and they had then stopped at one Chimney bhatta, where
Sulekha Devi had called someone on mobile and addressed him
as Sir and had said that they are coming, whereafter they had
proceeded further and after 10 minutes, they had reached one
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white colored, four storied building, having a red colored gate.
108. PW-4 has further stated that thereafter, her daughter had
asked them as to where they have come, whereupon Sulekha
Devi told her that they are at Giriyak and then the gate was
opened and the person who had opened the gate had wished
Sulekha Devi, whereafter they had gone inside the house to the
third floor, where a big hall was situated and there they had eaten
chapati and vegetables. PW-4 has next stated that the prosecutrix
was then told to sleep since Sir had not come there, whereupon
the prosecutrix asked them as to whether this was the party,
whereupon Sulekha Devi told her that they had not come to a
party and instead they had come to meet Sir, who is a good
person and she would ensure that the prosecutrix passes 10th with
good marks. After one-hour Sulekha came there, when the time
was more than 12:00 in the night and she went upstairs,
whereafter she called the prosecutrix by telling her that Sir has
come. Thereafter, the prosecutrix was taken to the 2nd floor,
alongwith Radha Devi, but she stayed at the door outside the
room. Sulekha Devi had then taken the prosecutrix to a room
situated at 2nd floor where one fat and black colored person aged
about 40-50 years was drinking liquor and he told them to sit and
drink liquor, whereafter prosecutrix told him that she does not
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drink liquor, however Sulekha Devi started drinking liquor. The
said fat-black person then told the prosecutrix to go to the bed
but the prosecutrix refused, whereafter Sulekha Devi made her
sit on the bed and then the said 40-50 years old person had
stuffed cigarette in her mouth and told her to smoke cigarette as
also had held her tightly, whereupon Sulekha Devi had made the
prosecutrix lie down on the bed as also had wrapped the mouth
of the prosecutrix with the pallu of her saree and then the
prosecutrix started crying and shouting but the said people did
not stop there. Sulekha Devi and the said fat and black person
told the prosecutrix that if she shouts then she would be handed
over to the servants who will keep her for the entire night.
109. PW-4 has next stated that the said fat and black person
had then raped her daughter for about one and half hours and
then the prosecutrix was taken by Sulekha Devi to the 3rd floor of
the house, where she was taken to the washroom and the blood
was washed. In the morning, they took prosecutrix to
Bakhtiyarpur by another car along with three persons and the
said 8-10 years old girl. They had then stayed at the house at
Bakhtiyarpur for about two hours, whereafter they had caught a
bus to Biharsharif, where they reached at about 10 a.m. and
dropped the prosecutrix at her house. During the aforesaid two
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hours’ time they were trying to please the prosecutrix by offering
money and mobile phone but the prosecutrix had refused to
accept anything, however they also told the prosecutrix not to
disclose about the incident to anyone as also had asked the
prosecutrix to bring her friends. The prosecutrix had disclosed
that Sulekha Devi and Radha Devi had made a deal with the said
middle aged person for a sum of Rs. 30,000/-. PW-4 has further
stated that on 09.02.2016 he had gone along with PW-1 and the
prosecutrix to the Mahila Police Station where a plain paper was
given and as disclosed by the prosecutrix, PW-1 had written and
given the same to the Police Station. PW-4 has stated that the
said written report was written in his presence, whereafter the
prosecutrix had read the same and made her signature and then
he and PW-1 had also made their signature over the same. PW-4
has recognized his signature made over the said written report,
which has already been exhibited in the past as Exhibit No. 1
and 1/c. PW- 4 has further stated that thereafter, the prosecutrix
was taken by the police to the hospital for examination. On
09.02.2016 the police had recorded the statement of PW-4. On
15.02.2016 the statement of PW-4 was recorded in the Court
under Section 164 Cr.P.C. and upon finding the same to be
correct, he had put his signature over the same, which he has
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recognized and the same has been marked as Exhibit-2/d.
110. PW-4 has also stated that Sulekha Devi, Radha Devi, Tusi
Devi, Chhoti Devi, Pushpanjay and Rajballabh Prasad @
Rajballabh Yadav are having active role to play in the said
incident. PW-4 has further stated that on 10.02.2016 during the
course of investigation, the police had taken prosecutrix to
Giriyak, however upon search the said four storied white house
could not be found. Then on 11.02.2016 the prosecutrix was
again taken by the police towards Giriyak and after moving
ahead for some time she had remembered the Chimney Bhatta,
whereafter they had moved ahead for some more time and then
one white coloured four storied house was seen. After going near
the said house, the rapist was found strolling outside the gate of
the said house and was talking on a mobile phone and on seeing
him the police had turned back. Thereafter, they moved ahead
from there and then the police had asked the local people as to
whom the said house belongs, then the people told that the said
house belongs to Rajballabh Prasad @ Rajballabh Yadav who is
M.L.A. of Nawada. The police had then gone towards Nawada
along with the prosecutrix, where poster/banner were present,
which the prosecutrix had seen and then she had recognized the
rapist. After returning back from there, the prosecutrix was
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called to the police station on 13.02.2016 and was shown some
photographs, whereupon she recognized Rajballabh Prasad @
Rajballabh Yadav. PW-4 had also recognized all the accused
persons standing in the dock, namely Sulekha Devi, Radha Devi,
Chhoti Devi, Tusi Devi, Pushpanjay and Rajballabh Prasad @
Rajballabh Yadav. In paragraph no. 7 of his cross-examination,
PW-4 has stated that he is inter-pass and his marriage was
solemnized in the year 1990. He has also stated that at the
beginning, he had got his elder daughter enrolled at Primary
School, Sultanpur and she passed her matric in the year 2009 and
graduated in the year 2016 from Nalanda College, Biharsharif.
She used to go every day from her village to the college and
during the course of giving examination also, she did not use to
stay at Biharsharif as also had not taken any tuition or coaching
at Biharsharif.
111. In paragraph no. 8 of his cross-examination, PW-4 has
stated that he had also got his other daughter enrolled in the
aforesaid school, however he does not remember as to in which
year he had got her enrolled in the said school but she was
enrolled in the said school after two years of enrolment of her
elder sister and after completing her matriculation, he had got
her enrolled with the Research Institute at Nalanda. After 2-3
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months of her enrolment, one room was taken on rent at
Naisarai, Biharsharif, whereafter his other two daughters and his
son started living in the said room. After his elder daughter had
passed matric, his second daughter passed matric after one year
and then he had got her enrolled at one polytechnic college at
Delhi namely, Meerabai Institute of Technology, which was
situated at Maharani Bagh, Delhi, where she had stayed for three
years as also had completed her diploma course and after coming
back, she had given intermediate exam privately. In paragraph
no. 10 of his cross-examination, PW-4 has stated that when her
elder daughter was staying at Delhi, he had got her other
daughter enrolled at Biharsharif in the intermediate course, i.e
after one year of her elder daughter having gone to Delhi,
however she did not use to stay at Biharsharif and used to go to
Biharsharif from her home and her college was situated at
Sohsarai. PW-4 has further stated that his elder daughter had
given intermediate exam from Biharsharif College and he had
got his son enrolled at Biharsharif prior to his elder daughter
having started staying at Biharsharif and he used to stay there in
a hostel. After elder daughter of PW-4 had returned, she along
with his other daughters and sons started staying at Naisarai
together from the year 2015 onwards and at that time the
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prosecutrix had not gone there but she started staying at the
room at Garhpar, Biharsharif, where he used to go 2-3 times in a
week. In paragraph no. 13 of his cross-examination, PW-4 has
stated that after four years of his marriage first daughter was
born and after 15 months of the birth of his first daughter, second
daughter was born and his second daughter was born after one
and a half years of the birth of his first daughter. He has further
stated that after the birth of his second daughter, the prosecutrix
was born in the year 2000.
112. PW-4 has next stated that the prosecutrix was born after
three years of the birth of her second daughter. He has also stated
that after three years of the birth of the prosecutrix his son was
born and after five years of the birth of his elder son, his younger
son was born. PW-4 has further stated that he had not got the
birth of the aforesaid children registered since they were born at
home and he had also not given any documentary proof of their
age at the time of enrolment of his daughters and at that time the
enrolment of his daughters was done on the basis of their date of
birth written in his diary. He has also stated that he had noted the
date of birth of all his children in separate diaries. He has stated
that 8-10 years back, ration card was made from the block
wherein the names of all his children are present, however he
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does not remember as to whether their age is written or not and
he is also having A.P.L. card in which also list of his family
members is mentioned, however, he does not remember as to
whether the age of the members of his family is written there or
not. In paragraph no. 25 of his cross-examination, PW-4 has
stated that prior to the incident in question he had met his
daughters on 04.02.2016 and in the evening of 07.02.2016 his
daughter PW-1 had called him on mobile and told him that
health is bad, hence he should come but he told her that he
would not come on the same day, whereupon her daughter did
not pressurize him to come on the same day. He has stated that
he does not remember the mobile number of her daughter. PW-4
has further stated that her daughter had again called him in the
morning of 08.02.2016, time whereof he does not remember,
while he was in his shop and at that time his daughter had not
shown any emergency as also she had not told him to bring her
mother along with him. PW- 4 has next stated that in the evening
after closing the shop he had gone to Biharsharif directly without
going to his house and had stayed at Biharsharif in the night of
08.02.2016.
113. In paragraph no. 26 of his cross-examination, PW-4 has
stated that after he gained knowledge about the occurrence, he
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did not inform his family members, relatives or friends and he
had become senseless in the night as also was not able to think
as to what to do inasmuch as such a big incident had taken place.
On the next day morning after they had woken up, they
discussed amongst themselves and decided to give information
to the police station about the occurrence. In paragraph no. 31 of
his cross-examination, PW- 4 has stated that it is wrong to say
that on 06.02.2016 the age of his daughter i.e. the prosecutrix
was more than 18 years and that he has wrongly disclosed her
age. In paragraph no. 32 of his cross-examination, PW-4 has
stated that it is wrong to say that he had got the age of the
prosecutrix recorded wrongly in the school records. In paragraph
no. 44 of his cross-examination, PW-4 has stated that he always
keeps mobile number 9798206864 with himself, which is with
him since 2-4 years and by the said mobile number he used to
call his three daughters almost every day, however he does not
remember as to whether on 06.02.2016 he had called and talked
with his daughters at Biharsharif. On 07.02.2016 and 08.02.2016
he had talked with his daughters and in fact his daughters had
called him and talked to him. PW-4 has stated that though he
does not remember the time when call was made to him on
07.02.2016 but the call had been made to him in the evening. On
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08.02.2016 he had received call around 11:00-12:00 in the
afternoon but he does not remember whether he was called once
or on several occasions. On 09.02.2016 no talk took place in-
between PW-4 and his daughters on the mobile phone because
he was staying at Biharsharif at the house situated at Garhpar
along with his daughters. On 10.02.2016 also PW-4 was at the
house situated at Garhpar but he does not remember as to
whether he had talked to his daughters on the mobile phone.
114. PW-4 has also stated that the second mobile number
mentioned in the FIR belongs to PW-1 and the first number is
his. He has denied the suggestion that on 07.02.2016 and
08.02.2016 he did not talk with his daughters by mobile phone.
He has also denied that on 09.02.2016 he had talked with his
daughter on the number mentioned in the FIR on four occasions
as also in the morning at 06:52 minute, in the day time at 10:21
minute and in the evening at 07:19 minute, while he was at
Rahui at that time. PW-4 has stated that it is wrong to say that on
10.02.2016 he had talked by his mobile phone with his daughters
on several occasions. In paragraph no. 49 of his cross-
examination, PW-4 has stated that after the treatment of
prosecutrix was done at Indira Gandhi Ayurvigyan Sansthan,
Patna, she was discharged on the same day. He has also stated
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that the treatment of the prosecutrix was also done at Rahui
Government Hospital, Biharsharif at Sadar Hospital and she is
taking medicine till date. In paragraph no. 50 of his cross-
examination, PW-4 has stated that on 09.02.2016, he along with
the prosecutrix and PW-1 had gone on foot from the house
situated at Biharsharif to Mahila Police Station for filing the case
and on the way they had crossed Bihar Police Station but he had
not gone to Bihar Police Station and had not met any police
officer there. PW-4 has denied to have said anything with regard
to the said incident to the S.P., Dy. S.P. etc. on the mobile.
115. PW-5 Rajeshwar Ram is Assistant Sub-Inspector of
Police, who was posted at Mahila Police Station, Nalanda,
Biharsharif on 12.02.2016 and on that day the Investigating
Officer had recorded his statement in connection with Mahila
P.S. Case No. 15 of 2016. PW-5 has stated in his examination-in-
chief that he had gone to make the victim identify the place of
occurrence. While moving ahead of Giriyak via Sabzi Mandi,
they had reached Nawada. Then they reached towards the north
near three corner roundabout and when they moved ahead, they
had reached Chimney bhatta, which was recognized by the
prosecutrix. The prosecutrix then disclosed that from the said
Chimney bhatta, Sulekha Devi and her mother had talked with
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some Sir and told him that they had reached. Then while going
through Bhadoura village, they made enquiries from the
villagers about the place of occurrence. From the road situated at
a distance towards North-South of the place of occurrence, one
four storied house was seen which was surrounded by wheat and
mustard crop fields and the said house was situated in between
the crop fields, which was recognized by the prosecutrix and she
told that this is the house where the occurrence happened with
her. Upon going near the house, the prosecutrix had identified
one 40-50 years old person, who was black and fat and was
strolling there and she told that this is the person who had
forcibly raped her. PW-5 has further stated that they had then
gone to Nawada Chowk and made enquiry about the said person,
upon which they were told that he is Rajballabh Prasad @
Rajballabh Yadav and the house also belongs to him. Thereafter,
they had come along with the prosecutrix to the police station.
PW-5 had recognized Rajballabh Prasad @ Rajballabh Yadav,
standing in the dock and had also recognized the other accused
persons standing in the dock, i.e. Sandeep Suman @ Pushpanjay,
Sulekha Devi, Radha Devi & Chhoti Devi, however, he said that
he cannot remember the name of one more accused.
116. The learned Trial Court had put a question to PW-5 to the
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effect that when they had seen accused Rajballabh Prasad @
Rajballabh Yadav strolling at the place of occurrence, then why
they had not asked his name, to which PW-5 had replied that
since he is a powerful person (Bahubali), hence they had not
asked his name.
117. In paragraph no. 4 of his cross-examination, PW-5 has
stated that he had the occasion to go to the three-cornered
roundabout, regarding which he has disclosed in his
examination-in-chief. On 10.02.2016 he had gone to the three-
cornered roundabout but not to Bhadoura village, where he had
gone on 12.02.2016. On the way there are several Chimneys but
they did not go to all the chimneys and straightaway went to the
chimney about which prosecutrix has stated to have identified.
PW-5 did not see any name written on the Chimney nor he saw
any board on the Chimney and it was a general Chimney, where
no persons were seen. PW-5 has further stated that even after the
prosecutrix had recognized the Chimney, they had not gone
inside the Chimney but were standing beside the Chimney for
about half an hour, however nobody passed by during the said
period but vehicles had passed by, whereafter they had returned
back to the Mahila police station, where senior officers had
come and made enquiries.
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118. PW-6, Manju Yadav, who was posted at the Mahila police
station since 03.09.2014 as Assistant sub-Inspector of Police, has
stated in her examination-in-chief that she knows about Mahila
P.S. Case No. 15 of 2016 and has disclosed the name of the
prosecutrix as also she has stated that she had gone along with
the Investigating Officer in connection with the incident which
had taken place with the prosecutrix. PW-6 has further stated
that for finding the place of occurrence and for searching the
persons who had committed the occurrence, they had moved
towards Giriyak, as told by the prosecutrix, for finding the
earthen road situated towards the southern side. After proceeding
ahead for some time, as told by the prosecutrix, one board was
seen by the prosecutrix and she said that she had gone ahead of
the said place, whereafter PW-6 and others along with the
prosecutrix had moved ahead towards the sabzi mandi at
Nawada and after crossing the sabzi mandi and moving on the
earthen road, they had reached three corner roundabout and
while they had moved ahead on the southern road, they saw that
all around mustard and wheat crops were growing and in
between one four storied white house was situated, which the
prosecutrix saw and then she told them that this is the house.
After they had proceeded further, they saw one black and fat
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person strolling there, who was wearing kurta-pyjama and was
aged about 40-50 years, whom the prosecutrix had recognized
and then she told that this is the person who had committed rape
with her. PW-6 has further stated that in this context, the
Investigating Officer had recorded her statement on 20.02.2016
at Mahila Police Station. In paragraph no. 5 of her cross-
examination, PW-6 has stated that after they had reached the
Mahila Police Station, since the father of the prosecutrix was
present there, they had handed over the prosecutrix to her father
and then her duty had ended, hence she went home. In paragraph
no. 6 of her cross-examination, PW-6 has stated that when the
prosecutrix became ill, then she had gone along with the
prosecutrix to Indira Gandhi Ayurvigyan Sansthan, Patna for her
treatment and at that time she got the opportunity to go to
Sultanpur where other people including the doctors had also
gone. She has also stated that they had taken the prosecutrix
from her home and then they had dropped her back at her home.
119. PW-7, Gandhari Devi was posted as Sub-Inspector of
police on 10.02.2016 at Mahila Police Station at Biharsharif,
Nalanda and she has stated in her examination-in-chief that on
the said day the Officer-in-Charge of Nalanda Mahila Police
Station had directed her to take the prosecutrix in connection
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with Mahila P.S. Case No. 15 of 2016 to Giriyak, towards the
place of occurrence for identifying the accused persons. In light
of the said order, after the prosecutrix had come to the police
station, PW-7 along with the prosecutrix and police force had
left the police station for the purposes of identifying the place of
occurrence and the accused persons, whereafter they had
proceeded towards Giriyak. As told by the prosecutrix, search
was made regarding the place of occurrence and inquiry was
made near Giriyak on both sides of the road but the place of
occurrence could not be found. Then, as told by the prosecutrix
that she had read the board of Giriyak and Nawada, they had
proceeded towards Nawada and had gone upto Nawada-Hisua
but nothing could be known. The prosecutrix was then taken to
Biharsharif, where they had dropped the victim at her house at
Garhpar. On the next day i.e. 11.02.2016, PW-7 along with the
Officer-in-charge, prosecutrix and the police force had left the
police station for identifying the place of occurrence and the
accused persons and then they had reached Giriyak, where as
told by the prosecutrix, lot of search was made with regard to the
place of occurrence but nothing could be known at Giriyak.
Then they had proceeded towards Nawada and had reached the
vegetable market, from where they had proceeded on the earthen
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road situated towards the southern side and after moving ahead
for some time, they reached a three cornered roundabout, from
where they proceeded towards the northern side and reached
Meherganj village, where they found crusher machines and
Chimney bhatta and on seeing the Chimney bhatta, the
prosecutrix immediately said that at this Chimney bhatta,
Sulekha Devi had talked with some Sir by her mobile phone,
whereafter inquiry was made, but nothing could transpire.
Thereafter, they had proceeded ahead of the Chimney bhatta and
reached Bhadokhra village, where enquiry was made with regard
to the place of occurrence, as told by the prosecutrix and there
they came to know that ahead on the road situated south of the
three cornered roundabout, one four storied white house is
situated, whereafter they had proceeded ahead through the
Bhadokhra village, crossed the three cornered round about and
moved ahead on the southern road, where the prosecutrix told
that the four storied house situated in between the wheat and
mustard crops field is the house where the occurrence had taken
place. In front of the said house one black and fat person aged
about 40-50 years was strolling and upon seeing him, the
prosecutrix immediately recognized him and said that he is the
person who had forcibly raped her, whereafter the Officer-in-
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charge moved towards Nawada Chowk for verification in her
vehicle and made inquiry at Nawada Chowk, whereupon it
transpired that the said four storied house which is located in
between wheat and mustard crops field is situated at Pathra
English village, which falls under the Nawada Mufassil Police
Station and the said house belongs to M.L.A. of Nawada, namely
Rajballabh Yadav as also the said black and fat person is M.L.A.
of Nawada. Thereafter, the Officer-in-charge had talked with the
senior officials on mobile and then they had left for Biharsharif
and returned to Mahila Police Station at Biharsharif. PW-7 had
recognized Rajballabh Yadav, standing in the dock.
120. In paragraph-10 of her cross-examination, PW-7 has
stated that on 11.02.2016, they had left the Police Station at
around 11-11:30 a.m. along with the prosecutrix, however the
father of the prosecutrix had not gone with them. On 11.02.2016,
the police personnel were the same as those who had gone on
10.02.2016, except S.I. Manju Yadav and Constable Seema Rani,
who had been added apart from 3-4 male constable. On that day
they had gone on a second (different) vehicle which had come
from the police line, however PW-7 has stated that she cannot
tell the name of the driver and the vehicle number. On
10.02.2016 also, the vehicle which was used by them had come
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from the police line. On 11.02.2016, they had gone, via
Bharaopar Chowk to Giriyak but they had not gone to Giriyak
Police Station and on that day, they had not enquired about the
four storied house. PW-7 has next stated that the by-lanes in
which they had conducted enquiry on 10.02.2016 was again
searched by them on 11.02.2016 and they had taken about 2½
hours at Giriyak. In paragraph-13 of her cross-examination, PW-
7 has stated that at the time when the prosecutrix had first seen
the house where the occurrence had taken place, she had shouted
with all enthusiasm. At that time, neither people nor vehicles
were passing by. There were two big houses and one small
pathar-chalan office at that place. The prosecutrix had shouted
from the closed vehicle that this is the house. In paragraph-15 of
her cross-examination, PW-7 has stated that after they had
arrived at the Police Station along with the prosecutrix, the
Deputy S.P., Sadar had arrived there and then the Deputy S.P.,
Officer In-charge and the prosecutrix had enclosed themselves in
a room and after about half an hour, PW-7 had gone to her
house, however she heard that photograph was shown to the
prosecutrix in the room, about which madam had told her when
she came out of the room.
121. PW-8 is Dr. Shailendra Kumar, who is stated to have been
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posted at Sadar Hospital, Biharsharif on 17.02.2016 as Deputy
Superintendent and on that day a Medical Board was constituted
under the chairmanship of Civil Surgeon-cum-CMO, Nalanda,
for medical examination of the prosecutrix vide letter no. 795 dt.
17.02.2016 comprising of the following members:-
(i) Dr. Shailendra Kumar, Deputy Superintendent (PW-8);
(ii) Dr. Ram Kumar Prasad (Pathologist), (PW-12);
(iii) Dr. Kumkum Kumari (Gynaecologist), (PW-11);
(iv) Dr. Kumari Preetee Ranjana (L.M.O.), (PW-13);
(v) Dr. Akhilesh Kumar (Dental Surgeon), (PW-10); and
(vi)Dr. Budh Prakash (Orthopaedic Surgeon), (PW-9).
122. PW-8 has stated that the mark of identification of the
victim is a mole on the left cheek and a mole on the right
dorsum of right hand. He has further stated that the physical
examination of the prosecutrix was done by Lady Medical
Officer as also by the Gynaecologist, namely Dr. Preetee
Ranjana and Dr. Kumkum Kumari, respectively. PW-8 has also
referred to the finding of the Medical Board in the following
terms:-
“Conscious oriented average built, Secondary Sexual
character well developed. No injury occur. No injury on
the private part of the body.”
123. PW-8 has also referred to the findings arrived at upon P.V.
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examination in the following terms:-
Vagina admitted two fingers easily. Hymen old ruptured.
No injury inside the vagina. Vaginal Swab taken for
microscopic examination.
Microscopic examination shows:-
(I) Spermatozoa not found. R.B.C. Nil. W.B.C. Nil.
Epithelial cell Present (1+).
(ii) Urine Pregnancy test-negative
124. As far as dental examination is concerned, 28 teeth were
found to be present and the findings of the x-ray examination
has been stated by PW-8 in the following terms:-
X-ray examination
X-ray both wrist joint A.P. view:-
Epiphysis in the process of fusion.
Elbow joint- all epiphysis fused.
Knee joint- all epiphysis fused.
X-Ray Pelvis- Illiac crest appeared but not fused.
X-Ray done in I.G.E.M.S. Bihar Sharif dated 09.02.2016
vide Symbol B-I
125. PW-8 has finally opined that on the basis of above
physical, dental, radiological and pathological examination, the
Board is of the opinion that the age of the prosecutrix is in-
between 16 to 17 years and rape could not be ruled out. PW-8
has also stated that all the members of the Medical Board, as
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aforesaid had put their signature and affixed their seal on the
said medical report. The Civil Surgeon – cum – C.M.O Nalanda
had also put his signature and affixed his seal. PW-8 has
identified all the signatures since all of them had signed in his
presence. PW-8 has also stated that the prosecutrix had also put
her signature over the medical report and had given her consent
for examination. One Manju Yadav, Police A.S.I. had also put
her signature on the report, which has also been identified by
PW-8. PW-8 has stated that the medical report is in the pen and
signature of Dr. Kumari Preeti Ranjana (LMO) and PW-8 has
identified her writing as also the report, which was prepared in
his presence. The entire medical report has been marked as
Exhibit-4. PW-8 has also stated that as per instruction of the
prosecution he has brought four x-ray reports, which have been
kept on record. In paragraph No. 2 of his cross-examination,
PW-8 has stated that there was no radiologist in the said medical
Board. In paragraph-3 of his cross-examination, PW-8 has stated
that on 17.02.2016, when the victim appeared before the Board,
they did not suggest for her fresh x-ray and on 17.02.2016 the
Board had knowledge that the victim was examined at Sadar
Hospital by Dr. Krishna (LMO) on 09.02.2016. The Board had
considered the said x-ray plates on 17.02.2016 and also referred
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the same in their report. The Technicians did not submit any
report with x-ray plate. PW-8 has next stated that no Radiologist
is posted at Sadar Hospital, Biharsharif and time of starting and
conclusion of the examination is not mentioned in the report.
126. The Court had put a question to PW-8 as to whether he
had produced x-ray report or x-ray plates yesterday, to which
PW-8 has stated that in the Court yesterday he had produced four
x-ray plates and not the x-ray report. In paragraph-7 of his cross-
examination, PW-8 has stated that the entire complaints and
complications disclosed by the rape survivor is mentioned in the
medical report and there was no evidence of recent sexual
intercourse on the person of victim. In paragraph no. 8 of his
cross examination, PW-8 has stated that in case of forceful
sexual intercourse, there may be severe abdominal pain, burning
micturition, burning sensation or mutilated genetalia. In such
case, insertion of finger in vagina is very painful.
127. PW-9 Dr. Budha Prakash was posted at Sadar Hospital,
Biharsharif where he was looking after orthopaedic cases as
Orthopaedic Surgeon. PW-9 has stated that on 17.02.2016, he
was posted at Sadar Hospital, Biharsharif on the same post and
on that day, a Medical Board was constituted under the
chairmanship of Civil Surgeon-cum-Chief Medical Officer,
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Nalanda for medical examination of the prosecutrix and he was
also one of the member of the Board. PW-9 has identified his
signature present on the medical report (Exhibit-4), which has
been marked as Exhibit-4/A. PW-9 has stated that being an
Orthopaedic Surgeon, he has given his opinion before the Board,
after going through the X-ray plates of the prosecutrix which are
four in number and were done at I.G.E.M.S., Sadar Hospital,
Bihar Sharif vide Symbol No. (B-1) on 09.02.2016. These X-ray
plates are of both wrist joint A.P. view, both elbow joint A.P.
view, both knee joints A.P. view and pelvis A.P. view. PW-9 has
stated that after going through the said X-ray plates, the age of
the prosecutrix was determined in between 16-17 years. PW-9 in
his cross examination has stated that all the members of the
Medical Board had sat together on 17.02.2016 at about 08:30
P.M. and before that day, there was no meeting amongst the
Members of the Board. PW-9 has further stated that when he had
joined the Board meeting, the X-ray plates and pathological
reports were already on table. He has also stated that he has not
put his signature on the X-ray plates and he does not know as to
from where the said X-ray plates were brought. PW-9 has also
stated that he had given his opinion regarding age of the
prosecutrix on the basis of the charts mentioned in the Forensic
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Medicine Book and that he has no depth in radiology but had
given opinion only because there was no qualified Radiologist in
the said Medical Board. In paragraph no. 6 of his cross
examination, PW-9 has stated that on 17.02.2016, he had
consulted/taken help of Modi Medical Jurisprudence book for
giving his opinion about age. PW-9 has also stated that there
may be cases in which even after 18 years of age, the epiphysis
of femur and proximal epiphysis of tibia and fibula may not be
fused and the said position of the bone is known as knee joint. It
is stated that the elbow joints of the victim might have been
fused approximately one year prior to the report dated
17.02.2016 and the fusion of knee joints of the victim might
have taken place within one year from the date of the report. As
regards fusion of iliac crest, it is stated that its fusion takes place
at the age of 19 years and on the basis of finding with regard to
one bone, the age cannot be assessed. PW-9 has also stated that
as per the opinion of “Lall and Townsend” fusion of wrist of a
female takes place at the age of 18-19 years.
128. PW-10 i.e. Dr. Akhilesh Kumar was posted at Sadar
Hospital Biharsharif on 17.02.2016 as Dentist and was part of
the Medical Board which conducted the medical examination of
the prosecutrix. PW-10 is stated to have examined the teeth of
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the prosecutrix and had found 28 teeth, 14 above and 14 down.
PW-10 has stated that the 3rd molar of the prosecutrix had not
come out, which categorically shows that her age was less than
17 years. He has stated that the report of the Medical Board was
made in his presence and he had put his signature over the same,
which he has identified and has been marked as Exhibit-4/6. In
his cross examination, PW-10 has stated that on 17.02.2016 at
about 6:00-6:30 in the evening, he was informed by Dr.
Shailendra Kumar that he is also a Member of the Medical
Board. hence he has to reach the office of the Civil Surgeon by
08:00 P.M. and when he reached there, except two members all
had arrived and after he had come, Dr. Raj Kumar also arrived
and the prosecutrix was present there from before, who had
come there along with the police officer. PW-10 had conducted
the dental checkup of the prosecutrix and counted the teeth. He
has stated that 7/7 points denote molar teeth and the meaning of
7/7 is up to second molar. From Professor Modi Medical
Jurisprudence, it would be proved that the age of the prosecutrix
is below 17 years and the said opinion had been given by him
after examining the teeth.
129. PW-10 has next stated that it is proved from Professor
Modi’s Medical Jurisprudence that he had not given opinion
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regarding the prosecutrix being below the age of 17 years on the
basis of teeth. In many people, 3rd molar never erupts (comes).
PW-10 has further stated that at the time of examining the teeth
of the prosecutrix, he had not written in his report that whether
any space had been formed after 2nd molar for eruption
(formation) of 3rd molar, although report should have been there
with regard to the same.
130. PW-11, Dr. Kumkum Kumari is the Lady Medical Officer
(LMO) who was posted at Biharsharif, Sadar Hospital on
17.02.2016. She has stated that on 17.02.2016, Civil Surgeon-
cum-Chief Medical Officer had constituted a Medical Board
under his chairmanship for examination of the prosecutrix vide
Letter No. 795 dated 17.02.2016 and she was also a member in
the said Board. PW-11 had examined the prosecutrix and she had
examined her body also her private parts. Along with her, at that
time, Dr. Kumari Priti Ranjana was also present and after
examination it was decided that the age of the prosecutrix is in
between 16-17 years, whereupon final medical report was
prepared after investigation which is in the writing of Dr.
Kumari Preeti Ranjana, which PW-11 has identified apart from
identifying her signature and she has also stated that she had put
her signature over the same which she has recognized as also she
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has identified the signature of Dr. Kumari Preeti Ranjana, which
have been marked as Exhibit-4/C and 4/D. PW-11 has also stated
that on the said report, signatures of Dr. Shailendra Kumar and
Civil Surgeon-cum-Chief Medical Officer (Chairman of the
Board) is also present, which she has identified, since the same
were made in her presence and the same have been marked as
Exhibit-4/E and 4/F. PW-11 has stated that vaginal swab of the
prosecutrix was taken for microscopic examination. In cross
examination, PW-11 has said that Dr. Krishna (LMO) was posted
at Sadar Hospital at Biharsharif and she is senior to her but she
does not know as to whether examination of the prosecutrix was
done by Dr. Krishna on 09.02.2016 and whether she has given
her report. In paragraph No. 5 of her cross- examination, PW-11
has stated that in case some virgin and nubile girl is forcibly
raped, injuries can be present in the outer and inner part of the
private parts. Possibility is there of injuries being present on the
buttock, on the thighs and the back. During the course of
examination, no proof of sexual intercourse was found on the
body of the prosecutrix. On 17.02.2016, X-Ray of the
prosecutrix was done and upon constitution of the Board,
everything is done afresh. The X-Ray of the knee joints, both
wrist joints, elbow joints and pelvis of the prosecutrix was done
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on 17.02.2016 and decision was taken after going through the X-
Ray plates. In paragraph 8 of her cross examination, PW-11 has
stated that ranging from 30 minutes to 17 days of the intercourse,
alive or dead spermatozoa can be found.
131. PW-12 is Dr. Ram Kumar Prasad, who was posted as
Pathologist at the Sadar Hospital, Bihar Sharif, on 17.2.2016, on
which day a Medical Board was constituted under the
chairmanship of Civil Surgeon-cum-CMO, Nalanda for medical
examination of the prosecutrix and he is stated to be one of the
members, as a Pathologist. PW-12 has stated that he had
examined the vaginal swab smear of the prosecutrix and had not
found spermatozoa as also R.B.C and W.B.C. were found to be
nil, however epithelial cells were present. The urine pregnancy
test was found to be negative. PW-12 has further stated that on
the same day, the medical report was prepared and he had put his
signature over the same, which he has identified and has been
marked as Exhibit-4/g. In cross-examination, PW-12 has stated
that he is aware that the prosecutrix had already been examined
by Dr. Krishna on 9.2.2016. As per the desire of Civil Surgeon
and Investigating Officer of this case, the Medical Board was
constituted. PW-12 has identified the signature of Dr. Krishna
present over the application addressed to Under Secretary,
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Health Department, Bihar, Patna, vide letter No. 428(G) dated
18.4.2016. The signature of Dr. Krishna was marked as Exhibit-
X for identification. In paragraph no. 7 of his cross-examination,
PW-12 has stated that in case of bleeding after forceful
intercourse or sexual intercourse, there may be injuries in the
genital trac like laceration, tear, abrasion. PW-12 has further
stated that it is wrong to say that the prosecutrix did not turn up
before the Board for reexamination on 17.2.2016 and that she
was never examined by the Board on that day.
132. PW-13 is Dr. Kumari Preeti Ranjna, who was posted as
Lady Medical Officer at the Sadar Hospital, Biharsharif, on
17.2.2016 and she was also a member of the Medical Board
constituted by the C.M.O., Nalanda, under his chairmanship for
medical examination of the prosecutrix. PW-13 has stated that
along with her Senior LMO, namely Dr. Kumkum Kumari, who
is a Gynaecologist, was also present. PW-13 had examined the
victim and had arrived at the following findings:-
“(i) Conscious oriented Average built. Secondary sexual
character well developed. No injury occurred. No injury
on the private part of the body.
(ii) P/V examination- Vagina admitted two fingers easily.
Hymen old ruptured. No injury inside in vagina. Vaginal
swab taken for microscopic exam.
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133. PW-13 has further stated that the urine Sample of the
prosecutrix was sent for Pregnancy Test which was found to be
negative. On the basis of their finding, they had assessed the age
of the prosecutrix to be in between 16 to 17 years. The entire
report was written by PW-13 and bears her signature, which has
already been marked as Exhibit-4 and 4/d. PW-13 has stated in
her cross-examination that she and Dr. Kumkum had conducted
thorough examination and no evidence of sexual violence was
found on the body of the prosecutrix. PW-13 has next stated that
the final report was prepared on the basis of x-ray report, dental
examination and report of the pathological test and she had also
given her opinion, whereafter the report was prepared on the
basis of the opinion given by the Doctors separately. PW-13 has
further stated that X-ray is done at I.G.E.M.S, which is at a
distance of five minutes from the chamber of the Civil Surgeon.
PW-13 has denied the suggestion that the prosecutrix did not
appear before the Medical Board on 17.2.2016.
134. PW-14, Alok Kumar was posted on 12.03.2016 in the
District Information Unit, Nalanda which is situated at the
residential office of the Superintendent of Police. PW-14 has
stated that he was having complete control over functioning and
operation of the computer i.e., of HP Company and all the
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information was being regularly compiled in its Hard Disk and
the information received from the same computer with regard to
the aforesaid case was extracted in Hard Copy and Soft Copy
and same was made available to the Investigating Officer. PW-
14 has further stated in the paragraph no. 3 and 4 of his
examination-in-chief that he had made available soft copy of
CDR and CAF of 10 mobile numbers including his analysis
report prepared by him of the same in a DVD of 4.7 GB. In
paragraph no. 08, PW-14 has stated that he had received report
from the investigating officer on 06.03.2016. It may be pointed
out that in paragraph no. 11 of his cross-examination, PW-14 has
stated that he had given an analysis report with regard to the
mobile phone of Sulekha bearing no. 9162857459, from which it
is apparent that on 06.02.2016 after 15:14:53 hours, the said
mobile was found to be outside the tower location of Biharsharif.
At 16:50:02 hours, the said mobile was found at Bakhtiyarpur.
After 18:13:36 hours of 06.02.2016, no call has been made nor
any call has been received over the said phone, hence CDR
cannot specify the location of mobile no. 9162857459 belonging
to Sulekha. In paragraph no. 13 of his cross-examination, PW-14
has stated that the mobile number of Tusi is 8651305263 and
8298800821, whose tower location on 06.02.2016 was not found
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to be either within the district Nalanda or district Nawada.
Similarly, on 06.02.2016, the tower location of Mobile no.
9162857459 belonging to Sulekha, after 15:14:53 hours, was not
found within the tower location of District Nawada or District
Nalanda.
135. In paragraph no. 14 of the cross-examination, PW-14 has
stated that on 06.02.2016, no call was made in between mobile
nos. 9162246321 and 9162857459. At this juncture, the learned
Senior Counsel for the Appellant No. 1 has submitted that
mobile no. 9162246321 belongs to the appellant of the first case.
In paragraph no. 18 of his cross-examination, PW-14 stated that
on 06.02.2016, a call lasting 26 seconds was made from mobile
number 8651305263 to mobile number 9162246321, which he
has mentioned at page No. 10 of his analysis report. He has
further stated that from the same former mobile number, another
call was made to the latter mobile number, which lasted
approximately 21 seconds. In paragraph no. 22 of his cross-
examination, PW-14 has stated that pursuant to the order of the
Superintendent of Police, the CDR of each mobile number was
obtained and this order was issued on the request made by the
investigating officer to the Superintendent of Police. He has
further stated that the CDRs of all the mobile numbers were
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obtained for the period from 01st February to 10th or 11th
March, 2016. In such cases where mobile numbers had been
discontinued during this period, its CDR would only reflect data
prior to 11.03.2016. In paragraph no. 23 of his cross-
examination, PW-14 has stated that the location of mobile no.
8651305263 on 06.02.2016 and 07.02.2016, was found to be at
Madhopur, Bakhtiyarpur, District-Patna. Similarly, location of
mobile no. 8298800821 was also found at Bakhtiyarpur on
06.02.2016. In the CDR, location of both the mobile numbers is
shown as Bakhtiyarpur and both the mobile numbers belong to
Tusi Devi.
136. In paragraph no. 24 of his cross-examination, PW-14 has
stated that mobile no. 9162857459, belonging to Sulekha Devi
was showing its location on 06.02.2016, during all the calls
made, either at Nalanda or Bakhtiyarpur, and that the last call
from this mobile number was made at 18:13:36 hours. In
paragraph no. 26 of his cross-examination, PW-14 has stated that
as per his analysis report, mobile no. 9162246321 belonging to
the Appellant of the first case was active, however the direction
from Pathra English tower in which it was active was not
mentioned in his analysis report. In paragraph no. 29 of his
cross-examination, PW-14 has stated that between 01.02.2016
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and 06.02.2016, a total of 55 calls were made from mobile no.
9162857459, belonging to Sulekha Devi, to mobile no.
9801265522. Similarly, between 07.02.2016 and 09.02.2016, 9
calls were exchanged between the aforementioned mobile
numbers. Furthermore, from Sulekha Devi’s mobile number, a
total of 13 calls were made between 01.02.2016 and 09.02.2016
to another mobile no. i.e., 9835274090. Additionally, 14 calls
were recorded between 01.02.2016 and 09.02.2016 between
Sulekha Devi’s mobile no. and mobile no. 9835071905. It is
pertinent to mention that the name, address, and Call Detail
Records (CDRs) of the aforementioned three mobile numbers
were neither obtained nor provided by him. In paragraph no. 30
of his cross-examination, PW-14 has stated that no requisition
was made by the Investigating Officer for obtaining CDR of
Mobile Nos. 7091225523 (airtel), 9430294787(BSNL),
8651343469 (Idea) and 7279050003 (AIRCEL) belonging to
Sandeep Suman @ Pushpanjay.
137. PW-15, Mridula Kumari, is the Investigating Officer of
this case and she has stated in her examination-in-chief that on
09.02.2016 she was posted at Mahila Police Station Nalanda,
Biharsharif as Inspector of Police-cum-Officer-in-Charge,
Mahila Police Station. On the said day, on the basis of the
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written report submitted by the prosecutrix, she had registered
Mahila P.S. Case No. 15 of 2016 and assumed the investigation
of the case as also had put the registration number on the written
report of the prosecutrix, which she has recognized apart from
having recognized her signature made over the same, which has
been marked as Exhibit-1/d. On the basis of the written report of
the prosecutrix, a formal FIR was lodged by Constable Asha
Devi, whose writing PW-15 has recognized and she has also
stated that her signature is present over the same, which she has
also recognized and the same has been marked as Exhibit-8. PW-
15 has further stated that after taking charge of the investigation
of the aforesaid case, she first of all mentioned the written report
of the prosecutrix in the case diary, had recorded the restatement
of the prosecutrix, had recorded the statement of the sister of the
prosecutrix, i.e. PW-1 and the statement of the father of the
prosecutrix, i.e. PW-4, whereafter she had sent the prosecutrix
for medical examination as also for recording of her statement
under Section 164 Cr.P.C. along with female constable No. 755,
namely Sangeeta Kumari. PW-15 had then proceeded with the
police force for investigation along with PW-1 and reached
Garhpar, Professor Colony, Udantpuri Mohalla, where search
was made for arresting the accused persons and during the
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course thereof, they had reached the house of Sulekha Devi but
found the house to be locked and there they came to know that
when they got clue of the prosecutrix going to the police station,
they had fled away after putting lock on their house. PW-15 is
stated to have inspected the house of the prosecutrix and its
surroundings. On 10.02.2016, PW-15 had directed the Sub-
Inspector of Police, Gandhari Devi (PW-7) to take the
prosecutrix for the purposes of recognizing the place of
occurrence, whereafter they had come back to the police station
at 19:00 hours and the place of occurrence could not be
recognized (identified) on the said day. On 11.02.2016, PW-15
along with the prosecutrix and police force had gone to Giriyak
and after reaching Giriyak, as told by the prosecutrix, they went
one by one on the right side towards the earthen road and search
was made by them for wheat and mustard crop fields with regard
to the white four-storied house but no such house, as described
by the prosecutrix could be found at Giriyak. Thereafter, they
had reached near Nawada Sabji Mandi and had gone ahead
towards right on the earthen road and reached three cornered
roundabout and after reaching there, they had proceeded towards
north through Devki Bigha village and reached Chimney bhatta
where they had also found a crusher, which is situated at
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Meharganj. Thereafter, they had moved ahead of the Chimney
bhatta and reached Bhadokhra village where they had enquired
about the four storied house, as disclosed by the prosecutrix,
whereupon they were told that if they moved on the earthen
road, situated at south of the three-cornered roundabout, they
would find such white house and wide road and the same is
situated in the middle of the wheat and mustard crop fields.
138. Thereafter, PW-15 along with the prosecutrix and the
police force had moved ahead on the earthen road and after 10
minutes, they found one or two new houses and a small room of
stone Challan Office, whereafter they had reached Pathra
English and then the prosecutrix had recognized a white house
situated there and said that the occurrence had taken place at the
said house, whereupon they had reached near the said house,
where they found one fat and black colour middle aged person
wearing kurta-pyjama strolling outside the gate while talking on
a mobile phone and upon seeing him the prosecutrix had stated
that this is the four storied house and the person who had given
effect to the occurrence in question, is the said middle aged
person. The prosecutrix had then identified the place of
occurrence i.e. the house in question situated in the wheat and
mustard crop fields and on the western side one wide road is
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situated, apart from recognizing the said person who had
committed rape with her. Thereafter, they had returned back and
reached Nawada Chauk and enquired about the said white colour
four storied house as also about the owner of the said house,
whereupon it transpired that the same belongs to MLA,
Rajballabh Prasad @ Rajballabh Yadav. The prosecutrix had
recognized Rajballabh Prasad @ Rajballabh Yadav by seeing the
poster of Vidhayakji displayed here and there. Thereafter, PW-15
along with her police force had returned back to the police
station where Senior Police Officers had come and had made
enquiry from the prosecutrix as also had shown the photo of
Vidhayakji from the Internet, which she had recognized. On
12.02.2016, the medical report of the prosecutrix was received
and her statement made under Section 164 Cr.P.C. was also
received, which was mentioned by PW-15 in the case diary. PW-
15 has further stated that search was made for the accused
Rajballabh Prasad @ Rajballabh Yadav but he was not traceable
and the second floor of the said house, which is the main place
of occurrence was found to be locked and the supporters of the
accused, Rajballabh Prsad @ Rajballabh Yadav, had created
obstruction. On 14.02.2016, PW-15 and other police officers
along with the FSL team had reached the aforesaid place of
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occurrence for investigation but on account of obstruction by the
supporters of Rajballabh Prasad @ Rajballabh Yadav, they had
returned back to the police station. On 15.02.2016, requisition
for search warrant and arrest warrant was made from the Court
for conducting search of the place of occurrence and for
arresting the accused persons. On 15.02.2016, PW-15 had also
requested the Court to record the statement of PW-1, PW-3 and
PW-4 under Section 164 Cr.P.C.
139. Thereafter, PW-15 had received the search warrant and
arrest warrant as also the order for recording the statement of the
aforesaid witnesses under Section 164 Cr.P.C.. On 16.02.2016,
PW-15 along with the F.S.L team and the Police Officials had
gone to the place of occurrence where the lock of the aforesaid
room was opened by the Ex-Mukhiya, Ashok Kumar and then
the FSL team had started investigation as also PW-15 had
conducted inspection. PW-15 has narrated the description of the
place of occurrence in detail in her deposition. PW-15 has
further stated that on 16.02.2016, a chart of the items collected
from the place of occurrence for examination was prepared by
the F.S.L team in the prescribed form, which was prepared by
one Trivedi Ji, who is a forensic expert, which had been
identified by PW-15 and the same has been marked as Exhibit-
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10. On 19.02.2016, PW-15 had received the medical report of
the Medical Board, which had conducted the examination of the
prosecutrix and the same was mentioned in the case diary. On
20.02.2016, the re-statement of the prosecutrix was recorded by
PW-15 and then the statement of PW-3 was also recorded by her.
In paragraph no. 24 of her examination-in-chief, PW-15 has
stated that at the direction of the Inspector General of Police
(Weaker Section), she had given an application before the Court
for addition of Sections 366(A), 370, 370(A) and 120B of the
IPC and Section 5 of the Immoral Traffic (Prevention) Act, 1956.
In paragraph no. 25 of her examination-in-chief, PW-15 has
stated that the FSL team came back to the Police Station after
inspecting the place of occurrence and handed over the exhibits
seized by them to her, whereafter she had presented before them
the clothes worn by the prosecutrix on the day of incident which
had been seized by her and the Constable, which were marked
by them as also they had taken steps to send all the exhibits for
examination. The seizure list was prepared by Gandhari Devi
(PW-7) in her handwriting, which she has recognized and the
same has been marked as Exhibit-11. PW-15 has also stated that
she had obtained the mobile numbers of the accused and
suspects and had handed over the same to the District
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Information Unit (D.I.U.) for obtaining C.D.R., C.A.F. and
analysis report of the same. In paragraph no. 30, PW-15 has
stated that she had then made inspection of the house of Sulekha
Devi, which is the third place of occurrence.
140. In paragraph no. 31, PW-15 has stated that on 12.03.2016
vide letter no. 163 dated 12.03.2016, she had received the
certificate in Prapatra-4 from the District Information Unit along
with the documents pertaining to Exhibit-107/16 which are
related to the present case and she had mentioned about the same
in the case diary. PW-15 has also stated that she had sent 10
mobile numbers for CDR, CAF and analysis report. PW-15 has
stated that after receiving the CDR/CAF analysis report, she had
mentioned the same in the case diary. PW-15 has next stated that
upon going through the call detail records of the mobile of the
accused Rajballabh Prasad bearing no. 9162246321, it was found
that he was regularly in conversation with Vishnu Kumar, the
holder of mobile no. 8084898313, who is his special driver and
conversation had taken place in-between them 358 times in total
and twice on the day of the occurrence too. PW-15 has also
stated that from mobile no. 8651305263 belonging to Tusi Devi,
12 times calls were made in a year and conversation was held
with the mobile number of Vidhyakji bearing mobile No.
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9162246321 and on the date of occurrence they had talked twice.
As far as the other mobile number of Tusi Devi, i.e. 8298800821
is concerned, 2 times calls were made in a year to the mobile
number of Rajballabh Yadav and the last call was made on
31.01.2016 on the mobile number of Rajballabh Yadav. As
regards Sulekha Devi, she had made 10 calls in a year by her
mobile no. 9162857459 to Rajballabh Yadav and the last call
was made on 22.11.2015. During the course of analysis, it was
also found that on the date of occurrence i.e., 06.02.2016,
contact was made from the mobile number of Tusi Devi, i.e.,
8651305263 with the mobile number of Rajballabh Prasad, i.e.
9162246321 twice, i.e. once at 14:33:47 hours and then at
17:44:02 hours and at that time the tower location of the mobile
number of Tusi Devi was found to be at her house at Madhopur
and the said fact was substantiated by the statements of Sulekha
Devi, Radha Devi, Tusi Devi and Choti. PW-15 has also stated
that it is apparent from the said contact made twice that first time
information was given about the condition of the prosecutrix and
on the second occasion, the car was asked to be sent since
immediately two hours after the said conversation, the mobile
tower location of the mobile of the driver Vishnu was found to
be at Bakhtiyarpur (This has been recorded with objection of the
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defence). The mobile number of driver Vishnu is 8084898313.
141. In paragraph no. 35 of her examination-in-chief, PW- 15
has stated that it was found during investigation that the Driver
Vishnu was in touch with Sulekha Devi, Tusi Devi and Radha
Devi since past which is apparent from the analysis report and
their statements. Driver Vishnu used to call Tusi Devi and
Sulekha Devi from his mobile number 8084898313 and during
the past one-year Tusi Devi had called him 55 times on his
mobile number from her mobile no. 8651305263 and on the date
of occurrence, i.e. on 06.02.2016, nine times call were made to
him and further he had called on the mobile number of Sulekha
Devi, i.e. 9162857459 on nine occasions, the last call having
been made on 30.12.2015. The location of the aforesaid mobile
of Vishnu Driver on the date of occurrence has been found to be
at the tower situated at Pathra English in the morning at 08:50:59
hours up to 17:42.31 hours and prior to call being made from the
mobile of Tusi Devi to the mobile of Rajballabh Prasad @
Rajballabh Yadav, conversation was held at about 14.29.21
hours, which was an incoming call. Thereafter, conversations
were also held at 14:50:03 hours and 15:12:09 hours. Again,
when Radha Devi and Sulekha Devi had brought the prosecutrix
to Bakhtiyarpur, then conversations were held with Driver
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Vishnu from 17:39:55 hours to 17:42:31 hours, 18:45:35 hours
to 19:15:35 hours and from 19:37:08 hours to 19.47.22 hours. A
report has been submitted by the D.I.U after making
investigation of the tower of the place of occurrence, i.e., Pathra
English, Garhpar, Biharsharif and Rani Sarai, in which reference
has been made to towers of several companies and the accused
Rajballabh Prasad as also driver Vishnu have used SIM of Airtel
company, which confirms the place of occurrence. PW-15, after
taking permission of the Ld. Court had taken the remand of
Rajballabh Yadav for 48 hours to interrogate him and had
recorded the statement of the appellant of the first case and
mentioned it in the case diary, which was reduced in writing and
PW-15 had also analysed the same. The statement of the
bodyguard of the appellant of the first case was recorded under
Section 164 Cr.P.C.. These statements have also been mentioned
by PW-15 in her case diary. PW-15 had submitted chargesheet
dated 20.04.2016.
142. In paragraph no. 40 of her examination-in-chief, PW-15
has stated that she had received the examination report of FSL
which has been mentioned in paragraph no. 434 of the case
diary. She has further stated that blood-like substance was found
on the edge of the mattress cover. In paragraph no. 46 of her
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cross-examination, PW-15 has stated that at the time the
prosecutrix had come to the police station for lodging an FIR,
she was not present in the police station, however she had
reached there after about 10-15 minutes and after 5-7 minutes
the prosecutrix had come to her at about 10:30 A.M. with her
written report, whereafter at 10:40 A.M. she had sent PW-15
along with Constable Sunita Kumari for medical examination
and after her medical examination she had directed for recording
her statement under Section 164 Cr.P.C. In paragraph no. 50 of
her cross-examination, PW-15 has stated that on 06.02.2016 the
prosecutrix had gone along with Sulekha Devi and Chhoti Devi
from their house, however she had not asked the prosecutrix as
to through which way they had gone to Ramchandarpur bus
stand and upon asking about the same from others, nobody had
given any answer. PW-15 has also stated that no witness from
the Mohalla of the prosecutrix had told her that on 06.02.2016
Sulekha Devi and Chhoti Devi had come to the house of the
prosecutrix and had seen them going there as also none from the
Mohalla of prosecutrix has given any statement to the effect that
on 06.02.2016 they had seen prosecutrix going along with
Sulekha Devi and Chhoti Devi from their house and moreover,
no witness has said that they had seen them going ahead from
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Ramchandarpur bus stand. In paragraph no. 51 of her cross-
examination PW-15 has stated that nobody had seen the
prosecutrix at Ramchandarpur bus stand or going ahead from
there as also nobody had seen her and other women co-accused
returning.
143. In paragraph no. 53 of her cross-examination, PW-15 has
stated that Bharaopar Chauraha is a famous Chauraha of the
town, which is situated at a distance of 1½ km from the house of
the prosecutrix and Ramchandarpur bus stand is at a distance of
500 yards from Bharaopar Chauraha. She has also stated that in
order to reach Ramchandarpur bus stand one has to cross
Bharaopar Chauraha. In paragraph no. 57 of her cross-
examination, PW-15 has stated that on 10.02.2016, in the night
at about 10:30 p.m. she had constituted a team and along with
the prosecutrix and her father, the said team was sent for
investigation and arresting the accused and on that day she had
not done any investigation as also she had not mentioned the
members of the team in the case diary, much less about the
vehicle which had taken the said team for investigation. She has
next stated that she does not remember as to whether the said
team had gone to Nawada-Hisua More on 10.02.2016 along with
the prosecutrix, however she has stated that Gandhari Devi was a
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member of the said team. In paragraph no. 60 of her cross-
examination, PW-15 has stated that Chimney was situated at a
distance of 40 yards from Devki Bigha-Maharani Ganj Road and
upon the prosecutrix having told her that she had come there,
PW-15 had stopped the vehicle, however the prosecutrix did not
tell about any identification sign of the Chimney present there
and PW-15 had also not written about any special sign of the
said Chimney in her diary. PW-15 has also stated that neither she
nor any other police personnel had alighted from the vehicle
there and the vehicle had stopped there only for one-two minute,
whereafter they had kept moving ahead and, on the way, they
had enquired from the people coming and going through the said
road about the house where the occurrence had taken place. PW-
15 has next stated that she had alighted from the vehicle after
reaching Bhadokhara.
144. In paragraph no. 61 of her cross-examination, PW-15 has
stated that they had gone to the door of 2-3 houses in
Bhadokhara and the prosecutrix had also got down from the
vehicle and upon enquiry made from the people present there,
though they had not disclosed their names but they had indicated
the direction of the house where the occurrence had taken place.
She has next stated that they had seen the house where the
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occurrence had taken place from a distance of 40-50 yards away
from the said house. She has also stated that after going ahead
for five minutes from the three corner (tirmuhani) road, the place
of occurrence disclosed by the prosecutrix was stated to have
been identified. She has also stated that 100 yards prior to
reaching challan office, the prosecutrix had said about
recognizing the said house. PW-15 has next stated that after
going ahead from challan office for about 20-25 yards, they had
turned back the vehicle and gone to Nawada Chowk and near the
house where the occurrence had taken place, she could not know
as to whom the said house belonged to and they had also not
asked at the challan office as to whose house it was. PW-15 has
also stated that they had stayed at Nawada Chowk for 5-10
minutes and she had got down from the vehicle as also had
stopped the passers-by and asked them about the owner of the
house by telling them about the description of the house,
whereupon they had told that the said house belongs to
Rajballabh Yadav. PW-15 has next stated that for the first time
the poster of Rajballabh Prasad @ Rajballabh Yadav was seen at
Nawada Chowk and after inquiry when she was sitting in the car,
the prosecutrix had indicated towards the photo/poster and said
that he is the person, however neither the said poster was seized,
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nor photograph was taken. In paragraph no. 62 of her cross-
examination, PW-15 has stated that while returning from
Nawada Chowk she had not contacted the S.P., Nawada, Dy.S.P.
or Mufassil Officer-in-Charge for the purposes of arresting the
accused person. In paragraph no. 63 of her cross-examination,
PW-15 has stated that while leaving the police station and
returning back, entry is made in the station diary, however in the
present case, there is no mention in the case diary about entry in
the station diary. In paragraph no. 64 of her cross-examination,
PW-15 has stated that she was present during the course of the
search of the house concerning the place of occurrence on
11.02.2016 at about 04:00 p.m. in the evening and on that day at
about 04:30 p.m. in the evening she had gone through the three-
cornered round about to Devki Bigha and via Bhadokhra she had
reached the house i.e. the place of occurrence.
145. In paragraph no. 66 of her cross-examination, PW-15 has
stated that it could not become clear from the entire investigation
as to by which number vehicle, the prosecutrix was taken from
Bakhtiyarpur to Pathra English on 06.02.2016 and by which
number vehicle she returned from there to Bakhtiyarpur on
07.02.2016 and it could only be ascertained that the prosecutrix
had come and gone by white colored Bolero vehicle. In
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paragraph no. 69 of her cross-examination, PW-15 has stated
that she had received the mobile number of Rajballabh Prasad
for the first time on 21.02.2016, which was ascertained from the
second police report of the Superintendent of Police dated
20.02.2016. PW-15 has also stated that she has not mentioned in
her case diary as to whether on 21.02.2016 she had received the
C.D.R. of the mobiles in question or not but the Superintendent
of Police had received the C.D.R of the mobiles in question,
which can be ascertained from his second Police report. In
paragraph no. 73 of her cross-examination, PW-15 has stated
that on 12.02.2016 she had received the report of Dr. Krishna,
issued in the date of 09.02.2016 and mentioned it in the case
diary. In the said medical report it was written as follows:- “X-
ray handed over to police”. At this juncture PW- 15 has stated
that she had not got any X-ray plate along with the medical
report but she had not complained about the same to the lady
doctor. PW-15 has further stated that she had perused the said
medical report and in the said report there was no evidence of
“forceful sexual intercourse” and the said doctor had found that
the “victim is used to sex”. In paragraph no. 75 of her cross-
examination, PW-15 has stated that she had gone to the place of
occurrence situated at Pathra English on 13.02.2016, where she
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had found one locked room where the occurrence is stated to
have taken place but she had not prepared any report with regard
to the other parts of the said house because lot of commotion
was taking place at that place and she had prepared only one
paper regarding search-cum-seizure list. The seizure list
mentions no items to have been seized and the same is in her
writing which she has recognized, apart from recognizing her
signature and the same has been marked as Exhibit-A (with
objection).
146. In paragraph no. 76 of her cross-examination, PW-15 has
stated that the F.S.L. team had given its report with regard to the
articles seized on 16.02.2016. However, no evidence of rape was
found, nor finger print/foot print was taken by the F.S.L. In
paragraph no. 77 of her cross-examination, PW-15 has stated
that on 17.02.2016 no work of investigation was done by her in
the said case. On 19.02.2016 she has received the medical report
of the Medical Board, which had been constituted on the orders
of the seniors. In paragraph no. 78 of her cross-examination,
PW-15 has stated that she has never gone with the prosecutrix to
the place of occurrence situated inside the house located at
Pathra English because the prosecutrix was ill. It has been stated
that the D.I.G. in whose presence the statement of the victim was
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recorded on 13.02.2016, and video recording was made, is
Shalin Saheb. In paragraph no. 79 of her cross-examination, PW-
15 has stated that she had not taken out the C.D.R./ C.A.F. of the
mobile numbers written in the F.I.R. In paragraph no. 82 of her
cross-examination, PW-15 has stated that after the accused
Rajballabh Yadav was taken on remand by the police, she had
interrogated and a questionnaire was prepared, which was
answered to by the accused wherein he has stated that in the
night of 06.02.2016 at about 10:41 p.m. he had gone to the
T.M.C. Guest House, where Manager of T.M.C. Guest House
Umed Singh Yadav, his brother-in-law, Vinay Ranjan and one
I.A.S. Officer of Jharkhand, namely Manoj Kumar were present.
It was also stated by Rajballabh Yadav that the meeting was
called to resolve the land dispute pertaining to the brother-in-law
of Manoj Kumar, namely Narendra Ji and they had remained
there at the TMC Guest House for two hours and then at about
02:45 in the night, they had left for Nawada and via Prajatantra
Chowk they had reached Barahgania Pyne where they had
stayed for half an hour for the purposes of supervising the
cleaning of the said Pyne and then via the old jail, they had
reached near the old guest house, where also they had stayed for
half an hour where he had met Surendra Pandit and in the
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morning at 05:00, he had returned back to his residence at Pathra
English. In paragraph no. 86 of her cross-examination, PW-15
has stated that she had not recorded any statement of Mukhiya of
Bhadokhra, who had opened the lock of the house situated at the
place of occurrence and she had also not recorded the statement
of the witnesses of the seizure list dated 13.02.2016, namely
Pravin Kumar and Upendra Kumar. She has also stated that
during the entire investigation, the medical test of accused
Rajballabh Yadav was not conducted.
147. In paragraph No. 96 of her cross-examination, PW-15 has
stated that in the Mahila Police Station, one driver namely
Sanjay was posted on the date of the aforesaid occurrence and
thereafter as well but she does not remember the mobile number
of the said driver to be 8409734500 and 9431402285. As per
CDR, on 08.02.2016 at 15:26:22 hours, call was made from
mobile number 9431402285 to mobile no. 9162857459 (Sulekha
Devi) and on the same day at about 15:28:57 hours talks were
held in between mobile number 9409734500 and 9162857459.
PW-15 has also stated that she does not know as to whether the
driver Sanjay had talked with Sulekha on her mobile phone. In
paragraph-97 of her cross-examination, PW-15 has stated that
out of the two mobile numbers mentioned in the FIR one mobile
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number is 7856940431, from which talks were held on several
occasion on 09.02.2016 at 13:27:56 hours as also on 12.02.2016
which is apparent from the CDR sent by the Reliance Company
to the Court. Thus, calls were made from mobile number
9431402285 to the mobile number mentioned in the FIR on
09.02.2016 and 12.02.2016, which is also apparent from the
CDR. In paragraph No. 98 of her cross-examination, PW-15 has
stated that the second mobile number mentioned in the FIR is
9798207864 and the CDR of this mobile number has also been
sent by Reliance Company from which it transpires that in
between the mobile numbers mentioned in the FIR, no
conversation was held on 07.02.2016 and 08.02.2016 and
conversation was held only on 09.02.2016, which is apparent
from the CDR. In paragraph No.100 of her cross-examination,
PW-15 has stated that the mobile from which photographs of
Rajballabh Yadav was taken out through the net on 11.02.2016
and 13.02.2016 and was shown to the prosecutrix belongs to
some other police officer, however she does not remember as to
whom the same belongs to and she has not mentioned in her
diary about the name of the owner of the said mobile and the
mobile number. PW-15 has further stated that there were 2-3
types of photographs on the net but the photographs taken out
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from the net on the aforesaid two dates are more or less similar
and she had not taken any steps for conducting T.I. Parade. She
has also stated that the photographs of the accused, which was
shown to the prosecutrix on 11.02.2016 and 13.02.2016 is not
present in the case diary and on 13.02.2016, she had not
recorded any statement of the prosecutrix in the case diary and
only video recording was done in which the voice of senior
police officers can also be heard.
148. In paragraph No. 106 of her cross-examination, PW-15
has stated that first re-statement of the prosecutrix was recorded
by her on 09.02.2016 and her second statement was recorded by
her in the case diary on 20.02.2016. She has also stated that in
the re-statement made by the prosecutrix on 09.02.2016, the
name of Pushpanjay has not transpired as an accused. In
paragraph No. 119 of her cross-examination, PW-15 has stated
that at the time of occurrence, except Sanjay no other driver was
present in the Mahila Police Station and on 09/10.02.2016,
Sanjay driver had not gone with her for investigation. PW-15 has
further stated that if they go from the police station for
investigation by another car then the said vehicle is mentioned in
the station diary, however in the entire case diary, neither the
name of any police officer nor vehicle number has been
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mentioned. In paragraph no. 122 of her cross examination, PW-
15 has stated that she has not mentioned the name of the
concerned Deputy Superintendent of Police in the case diary,
who had taken out photograph from the net on 11.02.2016 for
the purposes of identification by the prosecutrix as also she had
not recorded his statement. The name of the said officer has also
been not been mentioned as a witness in the charge-sheet. PW-
15 has stated that neither the statement of the concerned police
officer, before whom PW-15 had shown the photograph from the
mobile phone on 13.02.2016 to the prosecutrix, in connection
with identification of the accused has been recorded nor she had
prepared any identification memo in presence of the Deputy
Superintendent of Police on 11.02.2016 or 13.02.2016. PW-15
has next stated that she had also not prepared any identification
memo on 11.02.2016 with regard to the prosecutrix having
identified the accused by seeing the poster at Nawada Chowk.
PW-15 has stated that she had also not prepared any
identification memo on 11.02.2016 with regard to the concerned
chimney much less with regard to the house, which is the place
of occurrence. PW-15 has also stated that she had not recorded in
the case diary that Chimney was identified by the prosecutrix in
presence of independent witness.
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149. In paragraph no. 127 of her cross-examination, PW-15
has stated that she had gone to the house of Sulekha Devi many
times, however she had found the house to be locked and she
had also deputed spy there. She has also stated that she had also
enquired about the mother of Sulekha Devi, who used to stay at
Shivpuri Mohalla along with her husband Arun Kumar. She had
also come to know about one sister of Sulekha Devi, namely
Tusi Devi. PW-15 has also stated that she had not carried out any
photography either of the house of Sulekha Devi situated at
Garhpar or the house of Radha Devi situated at Bakhtiyarpur and
the prosecutrix was also not taken there since she was ill. In
paragraph no. 144 of her cross examination, PW-15 has stated
that the name of Pushpanjay does not find place either in the FIR
or in the statement made by the witnesses on 09.02.2016 or the
statement made by the witnesses under Section 164 Cr.P.C.. In
paragraph no. 145 of her cross examination, PW-15 has stated
that it has been mentioned in paragraph no. 102 of the case diary
that search of accused Sandeep Suman @ Pushpanjay was made
as per law and he was kept in safe custody. She has also stated
that he was caught and brought by other police officers from
Patna. She has also stated that search was not made in presence
of any independent witnesses. In paragraph no. 148 of her cross
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examination, PW-15 has stated that on 06.02.2016, accused
Sandeep Suman @ Pushpanjay was present at Rani Sarai,
Bakhtiyarpur, which was told by the prosecutrix. In paragraph
no. 149 of her cross examination, PW-15 has stated that on
19.02.2016 at about 19:15 hours, Sandeep Suman @ Pushpanjay
was arrested and produced before her. In paragraph no. 151 of
her cross examination, PW-15 has stated that she had not given
any application to the DIU for taking out the CDR/CAF of the
mobile of Pushpanjay, hence nothing has come to light to show
that any talks had taken place from his mobile in connection
with the present case.
150. PW-16, Vipin Kumar Chaudhary is stated to be posted as
In-charge Director, State Photo Bureau, Crime Investigation
Department, Bihar, Patna and on that day, he had received a
requisition from the Investigating Officer of Mahila PS Case No.
15/16 dated 09.02.2016, namely Mridula Kumari asking him to
depute a photographer. He has also stated that videography was
also done by the police team and he has referred to the memory
cards, which has been exhibited in the present case. Thus, we
find that PW-16 is a formal witness, who has only identified the
memory cards and compact disks, used for video recording.
151. PW-17, Raj Kumar Bharti was posted in the office of
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State Photo Bureau, Crime Investigation Department, Bihar,
Patna and he has stated about videography having been done in
the said case and has also identified the memory cards and CD’s,
which have been marked as exhibits.
152. PW-18 is Reshma Verma, who was posted as Additional
Chief Judicial Magistrate-VII, Civil Court, Biharsharif. PW-18
had recorded the statement of the prosecutrix, PW-1 and PW-3
under Section 164 Cr.P.C., which have also been exhibited in the
present case.
153. PW-19, Swarn Prabhat was posted as Judicial Magistrate-
1st Class, Civil Court, Biharsharif on 15.02.2016 and he had
recorded the statement of PW-4 under Section 164 Cr.P.C., in
connection with Mahila P.S. Case No. 15 of 2016, which has
also been marked as exhibit.
154. PW-20, Devanand Kumar had been posted at the
Vodafone Company since June, 2014 and had produced and
identified the certificate issued under Section 65(B) of the Indian
Evidence Act, which has also been exhibited in the present case.
155. PW-21 is Vimal Kumar Srivastava, who was posted as
Nodal Officer in the Idea mobile company and he had produced
the CDR/CAF of the mobile numbers in question, before the
investigating team and he had also produced the certificate under
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Section 65(B) of the Indian Evidence Act, all of which have been
marked as exhibits in the present case.
156. PW- 22, Javed Akhtar is an employee/Nodal officer of the
Airtel mobile company, who had produced CDR/CAF of various
mobile numbers before the investigating team and he had also
produced certificate under Section 65(B) of the Indian Evidence
Act, all of which have been marked exhibits in the present case.
157. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the appellants on 17.03.2017/
12.04.2018 under Section 313 of the Cr.P.C. for enabling them
to personally explain the circumstances appearing in the
evidence against them, however in their respective statements,
they claimed themselves to be innocent and have stated that they
have been falsely implicated in the present case.
158. Now coming to the evidence of the defence witnesses,
DW-1 Umed Singh Yadav has stated in his deposition that he
was posted as Manager, TMC, Oraina on 06.02.2016. In the
premises of TMC, there is one guest house as also one canteen
and he knows the accused of the present case Rajballabh Prasad
Yadav. DW-1 has also stated that on 06.02.2016 at about 08:30
p.m. in the night, Rajballabh Prasad Yadav (MLA) had rang him
and asked him to make preparation and receive the officer,
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whereafter Vinay Ji reached TMC at 08:45 P.M. and then at
9:00/9:15 p.m. Manoj Kumar had come there in a Scorpio
vehicle and ultimately at 09:30 p.m. he had talked to the
M.L.A., however the call was received by his Assistant,
whereupon he had informed him about the guests having arrived
there. DW-1 has further stated that at 10:45-11:00 p.m. in the
night Vidhayakji had come to the premises of TMC along with
other people including his driver Dilip and his Assistant Pandit
Ji. One Bhante Ji had come there by the car of Chairman of
Child Labour Commission and the government bodyguard of
Vidhayakji, who was in dress. After having dinner, Vidhayakji
and the Administrative Officer had come out of the room at
about 01:00 a.m., whereafter the vehicle of the Administrative
Officer had left from there and after 2-4 minutes, Vidhayakji
had left the premises of TMC by his vehicle and along with his
associates.
159. DW-2 Vinay Kumar Ranjan is the brother-in-law of
Rajballabh Prasad Yadav, who had arranged the meeting of
Rajballabh Prasad Yadav with Manoj Kumar and others at TMC
Guest House. He has stated that he had reached TMC Guest
House at about 9:00 p.m. in the night of 06.02.2016 where
Rajballabh Prasad Yadav (MLA) had arrived at 11:00 p.m. in the
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night and the meeting had continued up to 12:45, whereafter at
about 01:00 a.m. Rajballabh Prasad Yadav and others had left
the premises of TMC.
160. DW-3 Hari Shankar Singh was the Secretary of the
village Saraswati Puja Committee in the year 2016 and had
organized Programme at Middle School, Bhadokhra. He has
stated that on 11.02.2016, no police party had come for
inspection at the village.
161. DW-4 Kailash Prasad Yadav is the Ward Councillor and
he has stated that Rajballabh Prasad Yadav (MLA) had arrived
at Prajatantra Chowk at about 01:30 a.m. in the morning of
07.02.2016 and was supervising cleaning of drain, whereafter he
had left after 1-1/2 hours.
162. DW-5 Ram Ratan Singh has stated in his deposition that
his wife Urmila Devi is the Councilor of Ward No. 13 (Nawada)
and in the night of 06.02.2016 and in the morning of 07.02.2016
at about 3:00 a.m. in the morning, Rajballabh Prasad Yadav had
reached at Gola Road, Barahgania Pyne, Nawada for
supervising the cleaning work of the drain in question.
163. DW-6 Prashant Rai is also a Ward Councilor, who has
stated in his deposition that on 07.02.2016 in the morning at
about 3:00, he was at Harishchandra Stadium where Rajballabh
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Prasad Yadav had reached at about 3:30 – 4:00 a.m.
164. DW-7 Upendra Kumar has stated that he is a Contractor
supplying labour and on 13.02.2016, he was present at the
challan house where the police party had come. PW-7 has also
stated that the police had searched the house of the appellant no.
1 of first case at Pathra English on 13.02.2016 in his presence as
also in the presence of one Praveen, whereafter he and Praveen
had put their respective signatures on the seizure list, which has
been marked as Exhibit-A/1 and A/2.
165. DW-8 Ashok Kumar has stated in his deposition that the
place from where the prosecutrix has stated to have seen the
appellant of the first case strolling outside his house is such a
place from where the gate of the house in question is not visible
and from the house in question no Chimney is visible.
166. DW-9, Prakash Veer, who is MLA of Rajauli has stated
that on 30.12.2015 he had also gone along with Rajballabh
Prasad Yadav to Rajgir where the Chief Minister had come and
they had met him in evening at 7:25 p.m. and there one
Electricity Contractor had made complaint regarding corruption
whereupon the Chief Minister had reprimanded Rajballabh
Prasad Yadav.
167. DW-10, Anil Mehta, who is a Social Worker has said that
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there was sore relationship in between the Chief Minister and
Rajballabh Prasad Yadav i.e. the appellant of the first case on
account of political reasons.
168. DW-11, Bhante Jambudeep @ Lalan Manjhi has stated
that in the night of 06.02.2016, he was with Rajballabh Prasad
Yadav from 08:30 p.m. to 01:30 and they had been together at
the Guest House situated at TMC premises, whereafter they had
gone together to Prajatantra Chowk.
169. DW-12 Dinesh Kumar Akela has stated in his deposition
that he had met Rajballabh Prasad Yadav in the intervening
night of 06/07.02.2016 at around 01:30 a.m. at Prajatantra
Chowk, whereafter he had accompanied Rajballabh Prasad
Yadav to Harishchandra Stadium where they had stayed together
for 45 minutes and then they had left.
170. DW-13, Rajesh Kumar is a Photographer and he has
certified the certificate prepared by him under Section 65(B) of
the Indian Evidence Act. He has also proved the Scan Disk etc.,
which have been marked as Exhibits No.- F to F/7.
171. DW-14, Prakash Kumar Singh is the Nodal Officer of the
Reliance Mobile Company and he has produced the CAF and
CDR of the two mobile numbers mentioned in the written
report/FIR, alongwith certificate under Section 65(B) of the Act,
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1872, which have been marked as Exhibits No.-I, J to J/5, K to
K/3, L to L/1 and M and N.
172. DW-15, Rajiv Ranjan Kumar is an Advocate Clerk who
has identified the signature of Dr. Krishna, which has been
marked as Exhibits-P and P/1.
173. The learned Trial Court upon appreciation, analysis and
scrutiny of the evidence adduced at the trial has found the
aforesaid appellants guilty of the offence and has sentenced
them to imprisonment and fine as stated above, by its judgment
and order.
174. We have perused the impugned judgment of the learned
Trial Court, the entire materials on record as also the evidence
adduced in the present case and have given a thoughtful
consideration to the rival submissions made by the learned
senior counsels/counsels for the appellants, the learned A.P.P.
for the State and Ms. Anukriti Jaipuriyar, Amicus Curiae
appearing for the prosecutrix. The first and foremost aspect
which is required to be adjudged is as to whether the prosecutrix
is a minor or not. In this regard we would first of all refer to the
methodology specified under Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (hereinafter
referred to as the ‘Rules, 2007’), which prescribes the procedure
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to be followed in determination of age of a juvenile or a child or
a juvenile in conflict with law. In the case of Jarnail Singh
(supra), the Hon’ble Apex Court has held that even though Rule
12 of the Rules, 2007 is strictly applicable only to determine the
age of a child in conflict with law, the said statutory provision
should also be the basis for determining age even of a child who
is a victim of crime.
175. Rule 12 of the Rules, 2007 provides determination of age
by seeking evidence by obtaining the matriculation or
equivalent certificates, if available and in absence thereof, the
date of birth certificate from the school (other than a play
school) first attended and in absence of the same, the birth
certificate given by a Corporation or a Municipal Authority or a
Panchayat and only in absence of either of the aforesaid
documents, medical opinion is required to be sought from a duly
constituted Medical Board, which shall declare the age of the
juvenile or child. In the present case the prosecutrix has
produced provisional matriculation certificate dated 29.05.2016
issued by the Bihar School Examination Board, Patna regarding
the Secondary School Examination, 2016 wherein the date of
birth of the prosecutrix has been mentioned as 04.01.2000 and
the same has been marked as Exhibit-3, however with objection.
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On the issue as to whether the mode and manner of proving
Exhibit-3 i.e. the provisional matriculation certificate of the
prosecutrix is defective or not and whether the same has been
proved in the manner as postulated under the Indian Evidence
Act, 1872 (hereinafter referred to as the ‘Act, 1872’), much
arguments have been made by both the sides and while the
Amicus Curiae has stated that since Exhibit-3 is a public
document, therefore it is not required to be proved like any other
document, although the same has been marked as an exhibit
with objection, the learned senior counsel Sri Surendra Singh,
appearing for the appellant of the first case has submitted that
even if Exhibit-3 i.e. the provisional matriculation certificate of
the prosecutrix is considered to be a public document, it is
required to be proved in the manner laid down under Sections
67 to 73 of the Act, 1872.
176. As regards the aforesaid issue, we have gone through the
definition of “Document” as mentioned in Section 3 of the Act,
1872 and have also perused Sections 61, 62, 64, 67, 74, 76 and
Section 77 of the Act, 1872. We find that any “document”
includes both public and private document. Section 61 of the
Act, 1872 provides that the documents may be proved either by
primary or by secondary evidence and the same includes both
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private and public documents. Similarly, Section 62 which deals
with primary evidence also includes both private and public
document and Section 64 which deals with proof of documents
by primary evidence also includes both public and private
documents. As far as Section 67 of the Act, 1872 is concerned,
the same provides that if a document is alleged to be signed or
to have been written wholly or in part by any person, the
signature or the handwriting of so much of the document as is
alleged to be in that person’s handwriting must be proved to be
in his handwriting. Therefore, we find that unless and until the
signature is proved, a document cannot be deemed to have been
proved. Now coming to section 74 of the Act, 1872, we find that
sub-clause(2), thereof deals with “public records kept [in any
state] of private documents”, thus Exhibit-3 would fall under the
said clause inasmuch as a bare perusal of section 74 (1)(i) to (iii)
would show that Exhibit-3 does not fall within the ambit of the
same. Hence, we find that even if Exhibit-3 is regarded to be an
original copy, then also the signature appended over the same is
required to be proved, as per the provisions referred to
hereinabove, otherwise the document in question shall not stand
proved. In this connection reference be had to a judgment
rendered by the Hon’ble Apex Court in the case of Neeraj Dutta
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(supra), wherein it has been held that when a document is
produced as primary evidence, it will have to be proved in the
manner laid down in Sections 67 to 73 of the Evidence Act and
mere production and marking of a document as an exhibit by the
court cannot be held to be due proof of its contents as also its
execution has to be proved by admissible evidence. On the other
hand, when a document is produced and admitted by the
opposite party and is marked as an exhibit by the court, the
contents of the document must be proved either by the
production of the original document i.e. primary evidence or by
copies of the same as per Section 65 as secondary evidence. So
long as an original document is in existence and is available, its
contents must be proved by primary evidence. Thus, when a
particular fact is to be established by production of documentary
evidence, there is no scope for leading oral evidence. We would
also gainfully refer to a judgment rendered by the Hon’ble Apex
Court in the case of R.V.E. Venkatachala Gounder (supra).
177. Now coming back to the present case, we find that it is
evident from the records that at the very inception, when the
provisional matriculation certificate was sought to be exhibited
as Exhibit-3, the defence had raised an objection, consequently
the provisional matriculation certificate was marked as Exhibit-
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3 with objection, hence considering the law laid down by the
Hon’ble Apex Court in the aforesaid case of R.V.E.
Venkatachala Gounder (supra), it is manifest that an objection
with regard to any document being exhibited by the prosecution
is directed towards the irregularity and insufficiency of the
mode and manner of proving the said document, thus the
prosecution was required to cure its defect and should have
proved the said Exhibit-3 in the manner as postulated under the
Act, 1872. In fact in a judgment rendered by the Hon’ble Apex
Court in the case of Narbada Devi Gupta (supra), the Hon’ble
Apex Court has held in paragraph no. 16 thereof that mere
production and marking of a document as exhibit by the Court
cannot be held to be a due proof of its contents and its execution
has to be proved by admissible evidence, i.e. by the evidence of
those persons who can vouchsafe for the truth of the fact in
issue. Thus, we find that Exhibit-3 i.e. the provisional
matriculation certificate of the prosecutrix has not stood proved
in the manner laid down under Sections 61 to 73 of the Act,
1872, hence the same cannot be considered by us as a proof of
age of the prosecutrix.
178. The next issue which would now arise is that in absence
of matriculation certificate, how the age of the prosecutrix is to
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be determined. In this regard the law is well settled inasmuch as
the Hon’ble Apex Court has held in a judgment rendered in the
case of Jarnail Singh (supra) that in case neither the
matriculation/equivalent certificates are available nor the date of
birth certificate from the school first attended is available nor
the birth certificate given by a Corporation or a Municipal
Authority or a Panchayat is present, medical opinion is required
to be sought for from a duly constituted Medical Board which is
required to declare the age of the juvenile or a child. In the
present case we find that a Medical Board was constituted, as
aforesaid, which had examined the prosecutrix on 17.02.2016
and furnished a medical report, opining therein that on the basis
of physical, dental, radiological and pathological examination,
the age of the prosecutrix is in between 16 to 17 years. As far as
the medical report dated 17.02.2016 is concerned, we find that
no Radiologist was a part of the Medical Board, hence neither
radiological test was conducted nor expert opinion of the
Radiologist was sought for, which is not only important but also
conclusive in determining the age of the prosecutrix on the basis
of ossification test and reliance was placed merely on a set of x-
ray plates pertaining to some purported x-ray of the prosecutrix
got done at some other hospital, however there is no proof on
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record to show that the same pertains to the prosecutrix, hence a
doubt is created regarding the entire process of age
determination of the prosecutrix. We also find that though PW-
10 (Dental Surgeon & Member of the Medical Board), in his
evidence, has stated that since the third molar of the prosecutrix
had not come out, her age is less than 17 years, however page
no. 280 of the Modi’s Medical Jurisprudence and Toxicology,
23rd Addition, relied upon by the appellants shows that third
molar or wisdom teeth can erupt any time in between 17th to 25th
years of age thus the said opinion of PW-10 cannot be relied
upon. We also find that the Hon’ble Apex Court in the case of
Vinod Katara (supra) has held in paragraph no. 58 thereof that
bone ossification test is not an exact science which can provide
us with the exact age of the person and the individual
characteristic such as the growth rate of bones and skeletal
structure can affect the accuracy of this method, hence the
ossification test is not conclusive for age determination because
it does not reveal the exact age of the person but the radiological
examination leaves a margin of two years on either side of the
age range as prescribed by the test irrespective of whether the
ossification test of multiple joints is conducted. Thus it is not in
doubt that radiological examination leaves a margin of two
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years on either side of the age range. Hence, applying the said
principle to the present case, if two years are added to either 16
or 17, the prosecutrix would definitely be a major.
179. We shall now advert to the deposition of the members of
Medical Board with respect to the “x-ray – Plates” of the
prosecutrix, about which reference has been made in the
medical report dated 17.02.2016 (Exhibit-4) and it has been
specifically stated therein that “x-ray done in I.G.E.M.S
Biharsharif dated 09.02.2016 vide Symbol B-I”. As far as the
evidence of PW-8, Dr. Shailendra Kumar is concerned, he has
stated in paragraph No. 3 of his cross-examination that on
17.02.2016, when the victim had appeared before the Board,
they did not suggest for her fresh x-ray, however on 17.02.2016
the Board had knowledge that the victim was examined at Sadar
Hospital by Dr. Krishna (LMO) on 09.02.2016 and in fact the
Board had considered the said X-ray plates on 17.02.2016,
which was also referred to in the said report. PW-9, Dr. Budha
Prakash has stated in paragraph No. 2 of his examination-in-
chief that he being an Orthopaedic Surgeon had given his
opinion before the Board after going through the X-ray plates of
the prosecutrix which are four in number and the X-ray was
done at I.G.E.M.S., Sadar Hospital, Bihar Sharif vide Symbol
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No. (B-I) on 09.02.2016. These x-ray plates are of both wrist
joint A.P. view, both elbow joint A.P. view, both knee joints A.P.
view and pelvis A.P. view. PW-9 has further stated that after
going through the said x-ray plates, the age of the prosecutrix
was determined in between 16-17 years. PW-9 has stated in his
cross-examination that all the members of the Medical Board
had sat together on 17.02.2016 at about 08:30 P.M. and when he
had joined the Board meeting, the x-ray plates and pathological
reports were already on table. He has also stated that he has not
put his signature on the x-ray plates and he does not know as to
from where the said x-ray plates were brought. PW-9 has next
stated that he had given his opinion regarding age of the
prosecutrix on the basis of the charts mentioned in the Forensic
Medicine Book but he has no in-depth knowledge of radiology,
nonetheless he had given opinion only because there was no
qualified Radiologist in the said Medical Board. In paragraph
no. 6 of his cross examination, PW-9 has stated that on
17.02.2016, he had taken help of Modi Medical Jurisprudence
book for giving his opinion about age. PW-9 has also stated that
there may be cases where even after 18 years of age, the
epiphysis of femur and proximal epiphysis of tibia and fibula
may not be fused and the said position of the bone is known as
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knee joint. It is stated that the elbow joints of the victim might
have been fused approximately one year prior to the report dated
17.02.2016 and the fusion of knee joints of the victim might
have taken place within one year of the date of the report. In
para No. 8 of his cross-examination PW-9 has stated that as
regards fusion of iliac crest, its fusion takes place at the age of
19 years and on the basis of finding with regard to one bone, the
age cannot be assessed. PW-9 has also stated that as per the
opinion of “Lall and Townsend” fusion of wrist of a female
takes place at the age of 18-19 years. However, we find that on
the contrary PW-11, Dr. Kumkum Kumari has stated in para No.
5 and 6 of her cross-examination that on 17.02.2016 x-ray of the
prosecutrix was done and upon constitution of the Board,
everything has to be done afresh and past x-ray report and any
other report had not been put before us. The x-ray of the knee
joints, both wrist joints, elbow joints and pelvis of the
prosecutrix was done on 17.02.2016 and decision was taken
after going through the X-Ray plates.
180. PW-13, Dr. Kumari Preeti Ranjana has stated in her cross-
examination that the final report was prepared on the basis of x-
ray report, dental examination and report of the pathological test
and she had also given her opinion, whereafter the report was
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prepared on the basis of the opinion given by the Doctors
separately. PW-13 has also stated that x-ray is done at
I.G.E.M.S, which is at a distance of five minutes from the
chamber of the Civil Surgeon. Thus, it is evident from Exhibit-4
as also from the deposition of the doctors, who were members
of the Medical Board that no fresh x-ray of the prosecutrix was
conducted on 17.02.2016. We also find from the report of the
Medical Board dated 17.02.2016 that x-ray of both the wrist,
joint (AP view) shows that epiphyses is in the process of fusion
whereas x-ray of both elbow joint (AP view), knee joint (AP
view) shows that all epiphyses are fused, however upon
examination of x-ray of pelvis, iliac crest appears to have not
been fused, thus the same would lead to a finding that the
prosecutrix is more than 19 years of age. As far as the presence
of Radiologist in the said Medical Board is concerned, there is
no dispute that no Radiologist was a part of the aforesaid
Medical Board. We also find that I.G.E.M.S has been
outsourced and there is an agreement with the health society.
PW-8, Dr. Shailendra Kumar (Member of the Medical Board)
has stated in his evidence that no doctors work at I.G.E.M.S.,
the department (obviously x-ray unit) is being run by
technicians and three technicians are working there. In
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paragraph-3 of his cross-examination, PW-8 has stated that on
17.02.2016, when the victim appeared before the Board, they
did not suggest for her fresh x-ray and the x-ray plates of
09.02.2016 was considered by the Board on 17.02.2016. PW-8
has also stated that Technicians did not submit any report along
with the x-ray plates. PW-8 has next stated that no Radiologist is
posted at Sadar Hospital, Biharsharif. Thus, we find that since
there is no evidence on record to suggest that x-ray plates
produced before the Medical Board belongs to the prosecutrix
apart from the fact that the said x-ray plates were not
accompanied by any report of the Radiologist/Expert and
moreover, no Radiologist was a part of the Medical Board, the
opinion of the Medical Board in its report dated 17.02.2016
cannot be stated to be based upon the prescribed standard
medical procedure for age determination, hence the said report
dated 17.02.2016 is not reliable, therefore the opinion of the
Medical Board, as aforesaid, cannot be said to be a conclusive
proof of the age of the prosecutrix.
181. Now coming to the ocular evidence with regard to the age
of the prosecutrix, we find that PW-4 (father of the prosecutrix)
has admitted in paragraph no. 8 of his cross-examination that he
cannot say as to in which year he had got his respective
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daughters enrolled at the Primary School at Sultanpur. PW-4 has
also stated in his cross-examination that he had not got the birth
of his children (including the prosecutrix) registered since they
were born at home and he had also not given any documentary
proof of their age at the time of their enrolment at the school in
question, however he had noted the date of birth of all his
children in separate diaries. We find from the evidence on
record that PW-4 has withheld such an important evidence
pertaining to the age of the prosecutrix inasmuch as he could
have very well produced the aforesaid diaries in which he had
noted the date of birth of his children, which leads us to assume
that such evidence, if produced, would have been unfavourable
to the prosecution. In this regard reference be had to Section 114
Illustration (g) of the Act, 1872 which allows the Court to draw
an adverse inference against a party for non-production of
material evidence or witnesses within their control. In this
connection we would gainfully refer to a judgment rendered by
the Hon’ble Apex Court in the case of Tomaso Bruno v. State
of U.P., reported in (2015) 7 SCC 178, paragraph no. 27 and 28
whereof is reproduced herein below:-
“27. As per Section 114 Illustration (g) of the Evidence
Act, if a party in possession of best evidence which will
throw light in controversy withholds it, the court can
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that the onus of proving does not lie on him. The
presumption under Section 114 Illustration (g) of the
Evidence Act is only a permissible inference and not a
necessary inference. Unlike presumption under Section
139 of the Negotiable Instruments Act, where the court
has no option but to draw a statutory presumption, under
Section 114 of the Evidence Act, the court has the option;
the court may or may not raise presumption on the proof
of certain facts. Drawing of presumption under Section
114 Illustration (g) of the Evidence Act depends upon the
nature of fact required to be proved and its importance in
the controversy, the usual mode of proving it; the nature,
quality and cogency of the evidence which has not been
produced and its accessibility to the party concerned, all
of which have to be taken into account. It is only when all
these matters are duly considered that an adverse
inference can be drawn against the party.
28. The High Court held that even though the appellants
alleged that the footage of CCTV is being concealed by
the prosecution for the reasons best known to the
prosecution, the accused did not invoke Section 233
CrPC and they did not make any application for
production of CCTV camera footage. The High Court
further observed that the accused were not able to
discredit the testimony of PW 1, PW 12 and PW 13 qua
there being no relevant material in the CCTV camera
footage. Notwithstanding the fact that the burden lies
upon the accused to establish the defence plea of alibi in
the facts and circumstances of the case, in our view, the
prosecution in possession of the best evidence, CCTV
footage ought to have produced the same. In our
considered view, it is a fit case to draw an adverse
inference against the prosecution under Section 114
Illustration (g) of the Evidence Act that the prosecution
withheld the same as it would be unfavourable to them
had it been produced.”
182. Thus, we find that the prosecution/ the prosecutrix has
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failed to bring on record any admissible document regarding age
of the prosecutrix as also has failed to prove the age of the
prosecutrix, more so to the effect that she was a minor on the
date of occurrence, even by way of adducing ocular evidence,
hence we find that there is no proof that the prosecutrix was
below the age of 18 years as on the date of occurrence,
especially considering the fact that if at all the medical report of
the prosecutrix dated 17.02.2016, furnished by the Medical
Board, opining the age of the prosecutrix to be in between 16 to
17 years is considered to be of any worth, then applying the
principle laid down by the Hon’ble Apex Court in the case of
Vinod Katara (supra), if two years are added to either 16 or 17,
the prosecutrix would definitely be a major. Therefore, the
provisions of the POCSO Act, 2012 shall not apply in the
present case. In this connection, we would like to refer to a
judgment dated 30.10.2024, rendered by a coordinate Bench of
this Court in Criminal Appeal (DB) No. 550 of 2021 (Mannu
@ Saddam @ Md. Mannu Sadam vs. The State of Bihar),
wherein it has been held that it is the prosecution which is
required to prove not only the minority of the victim for the
purposes of application of POCSO Act, 2012 but also the
foundational facts of the alleged offence, before the Court raises
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presumption under Sections 29 and 30 of the POCSO Act and
failure on the part of the prosecution to bring on record
admissible documents regarding age of the victim despite
availability/ feasibility of such documents would lead to the
Court drawing an adverse inference against the minority of the
victim.
183. The next issue which arises for adjudication is as to
whether the mode, manner and place of occurrence has stood
proved or not. As far as the place of occurrence is concerned, we
find from the paragraph no. 47 of the deposition of PW-2
(prosecutrix) as also from paragraph no. 78 of the deposition of
PW-15 (Investigating Officer) that though it is claimed that the
prosecutrix had identified the house where the alleged incident
is stated to have taken place, however the prosecutrix was never
taken inside the house so that she could identify the exact
place/room where the alleged incident had taken place, hence
the exact place where the occurrence in question had taken place
is yet to be ascertained. In fact on 11.02.2016 itself, when the
police party had taken the prosecutrix for the purposes of
identification of the perpetrator of crime as also the place of
occurrence, the prosecutrix is stated to have recognized the
appellant of the first case who was taking a stroll in front of his
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house as also she had recognized the house in question where
the occurrence had taken place, however the police had neither
made any effort to arrest the appellant of the first case from the
spot nor any effort was made to obtain warrant of arrest
immediately for arresting the appellant of the first case,
although under Section 41 of the Code of Criminal Procedure,
1973, any police officer is empowered to arrest a person who
has committed a cognizable offence as also for proper
investigation of the offence, without any order from the
Magistrate and without a warrant. However, in the present case
the mandate of Section 41 of the Cr.P.C. has not been complied
with, which creates a doubt not only about the role of the police
but also regarding the factum of the police and the prosecutrix
having gone to the house where the alleged occurrence is stated
to have taken place as also with regard to identification of the
house in question and the appellant of the first case by the
prosecutrix. It is evident from the evidence of PW-5 i.e.
Rajeshwar Rai, Assistant Sub-Inspector of Police posted at
Mahila Police Station, Nalanda that on 10.02.2016 he had gone
along with the prosecutrix to the three cornered round-about but
not to Bhadokhra village where they had gone only on
12.02.2016. In fact it would also be apparent from the evidence
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of PW-5 that though there are several chimneys but they had
straight away reached the chimney about which the prosecutrix
had mentioned, nonetheless PW-5 has also not stated in his
evidence about having seen any name written on the chimney
nor he had seen any board or sign which could have led to
identification of the chimney in question. PW-5 has next stated
in his evidence that after the prosecutrix is stated to have
recognized the chimney in question, they had not gone inside
the chimney and had after half an hour returned back to the
Mahila Police Station. Thus a doubt is created about the place of
occurrence which is stated to be a four storied white house
situated at Pathra English.
184. As far as the first place of occurrence i.e. the rented house
in which the prosecutrix, her sisters and brother stay, which is
situated at Professor Colony, Garhpar, Biharsharif and the house
of Sulekha Devi situated at Biharsharif are concerned, we find
from the evidence of PW-2 (prosecutrix) and PW-15
(Investigating Officer) that the police had visited the house of
the prosecutrix at Garhpar only on 10.02.2016 and not on
09.02.2016 and the police had also thereafter, gone to the house
of Sulekha Devi but the same was found locked, nonetheless we
find that there is no evidence on record to suggest that
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subsequently the house of Sulekha Devi was ever searched by
the police. As far as the second place of occurrence situated at
Ranisarai, Bakhtiyarpur, stated to be the house of the mother of
Sulekha Devi i.e. Radha Devi is concerned, we find from the
evidence of PW-2 (prosecutrix) and PW-7 (Sub-Inspector of
police) that there is no mention about the police having
investigated the said house and made any kind of search. Thus,
the alleged places of occurrence have not been conclusively
proved by the prosecution. Now coming to the seizure list
prepared by PW-15 (Investigating Officer) at the house of the
appellant of the first case on 16.02.2016, we find that no
suspicious articles have either been recovered or seized as
would be apparent from Exhibit-9. Exhibit-11 contains the
details of the clothes worn by the prosecutrix on the date of
incident i.e. 06.02.2016, which was handed over by PW-1 (elder
sister of the prosecutrix) to PW-15 (Investigating Officer) on
26.02.2016, however the same were never produced before the
learned Trial Court during the course of the trial as is apparent
from paragraph no. 125 of the cross-examination of PW-2
(prosecutrix). Even the F.S.L. report has not been exhibited by
the prosecution. We also find that though the prosecution has
raised fingers regarding the role of the driver of the appellant of
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the first case, namely Bishnu, however neither he nor any of the
staff members of the appellant no. 1, who are stated by the
prosecutrix to be present at the place of occurrence when she
was taken there and raped, have either been arrested or
interrogated by the police, which further creates a doubt
regarding the mode and manner of the incident as also about the
happening of the occurrence in question itself.
185. At this juncture itself, it would be relevant to consider the
issue as to whether the prosecutrix (PW-2) is a sterling witness
or not and whether her evidence is credible, consistent and
trustworthy so as to place reliance upon the same for the
purposes of conviction of the accused persons. In this regard, we
would first of all examine and evaluate the written report filed
by the prosecutrix before the police, her statement made under
Section 164 Cr.P.C. and her testimony before the learned Trial
Court. As regards the initial part of the story, the prosecutrix has
stated in the written report that Sulekha Devi had come to her
house and asked her to go to a birthday party at Bharaopar,
however in her deposition, she has stated that Chhoti Devi had
come to her house and taken the prosecutrix to her house where
she had asked her to go to a birthday party but the prosecutrix
had refused leading to Chhoti Devi persuading her to go to the
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birthday party, whereafter Sulekha Devi had also pressurized the
prosecutrix to go to the birthday party in question, whereupon
after much persuasion, PW-2 had told them that she will have to
ask her elder sister i.e. PW-1 and then Sulekah Devi and Chhoti
Devi had come to the house of prosecutrix and persuaded PW-1
(elder sister of the prosecutrix) to let PW-2 (prosecutrix) go with
them for the birthday party. In the written report, prosecutrix has
stated that she had gone to the birthday party on 06.02.2016
along with Sulekha Devi and her daughter Chhoti Devi,
however in her deposition she has stated that she had left for
birthday party along with Sulekha Devi, Chhoti Devi, daughter
of Chhoti Devi, namely Tuktuk and one 8-10 years old girl. As
far as the time of leaving the house of the prosecutrix for going
to the birthday party is concerned, with regard to the same also
there is contradiction in the statements of the prosecutrix. In fact
there is material contradiction in the written report and the
deposition of the prosecutrix as regards the persons who had
taken her to Ramchandarpur Bus Stand and from there to
Bakhtiyarpur. Even on the point of vehicle used for ferrying the
prosecutrix and others from Bakhtiyarpur to Pathra English,
there is material contradictions.
186. Again there is inconsistency with regard to the place
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where four storied building in question is situated. The
prosecutrix has stated in paragraph no. 41 of her deposition that
she had not found any railway crossing on way from
Bakhtiyarpur to Giriyak/Pathra English, however on the
contrary, PW-4 (father of the prosecutrix) has stated in
paragraph no. 20 of his deposition that there is a railway
crossing in between Bakhtiyarpur and Giriyak/Pathra English.
The prosecutrix has not mentioned in the written report, that
while going to Pathra English from Bakhtiyarpur they had
stopped at a brick kiln at Giriyak from where Sulekha Devi had
made a call to someone and informed that person that they have
reached, however in her deposition she has mentioned about the
same. Yet again we find that though the prosecutrix has stated
that the occurrence had taken place at a four storied building,
however the appellant of the first case, in his statement made
under Section 313 Cr.P.C. has categorically stated that his house
is only three storied. In this regard it has been pointed out by the
learned senior counsels for the appellants, during the course of
hearing of the aforesaid Appeals that the video which has been
exhibited in the present case clearly shows that the building in
question is a three storied building. Thus, apparently there are
material contradictions in between the version of the prosecutrix
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as stated in the written report vis-a-vis her deposition.
187. We would, at this juncture take note of one another
circumstance which is that though the prosecutrix had left home
to go to Bharao Par but instead had gone to Ramchandarpur Bus
Stand at Biharsharif, from where she had travelled to
Bakhtiyarpur where she had dinner and thereafter, she had sat in
a Bolero vehicle with three strangers, Radha Devi, Sulekha Devi
and one 8 to 10 years old girl and gone to Giriyak/Pathra
English, nonetheless she had not raised any alarm at any given
moment of time and had also not persuaded anyone to drop her
back to her residence. This conduct of the prosecutrix leaves a
mark of doubt to treat her testimony as so natural and truthful to
inspire confidence. Thus, all the intervening circumstances as
also the aforesaid material contradictions in her statement would
show that the prosecutrix, who has deposed as PW-2 is not a
reliable witness, thus does not fall within the ambit of a sterling
witness, hence her testimony cannot be relied upon for the
purposes of adjudging the guilt of the appellants. Although it is
a well settled law that conviction can definitely be based on the
sole testimony of the prosecutrix when the evidence of the
prosecutrix is found to be trustworthy, unblemished, credible
and that of a sterling quality, however as far as the present case
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is concerned, we find that the evidence of the prosecutrix cannot
be stated to be of sterling quality and is not such, upon which
reliance can be placed.
188. We have also perused the evidence of PW-1 (elder sister
of the prosecutrix), PW-2 (prosecutrix), PW-4 (father of the
prosecutrix), PW-5 (police official), PW-7 (police official) and
PW-15 (Investigating Officer) and found that though PW-1
(elder sister of the prosecutrix), PW-2 (prosecutrix) and PW-4
(father of the prosecutrix) have stated that prosecutrix along
with Sulekha Devi, Radha Devi and 08-10 years old girl had
gone from Bakhtiyarpur to Giriyak, however, PW-15
(Investigating Officer) has admitted in her deposition at
paragraph no. 98 that location of mobile of Sulekha Devi was
never found at Giriyak or Pathra English. Similarly, while PW-2
(prosecutrix) has stated in paragraph no. 58 of her deposition
that the vehicle and driver were different while returning back
from the place of occurrence vis-a-vis while going to the place
of occurrence, however PW-15 (Investigating Officer) has stated
in paragraph no. 65 of her evidence that it has transpired during
the course of investigation that only one white colour Bolero
vehicle was used for taking and bringing back the victim from
Pathra English. In paragraph no. 66 of her cross-examination,
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PW-15 (Investigating Officer) has admitted that nobody had
seen the prosecutrix and others, either going in or coming out of
the house of the appellant of the first case. As regards the place
where the prosecutrix was taken and allegedly raped, she has
stated in her statement made under Section 164 Cr.P.C. that she
had read on a board and come to know that she has been taken
to Giriyak whereas in her deposition she has stated that when
she asked Sulekha Devi about the place where they had come,
she had told her that they had come to Giriyak. Another
incongruity which can be culled out from the evidence is that
PW-15 (Investigating Officer) has stated in her evidence in
paragraph no. 48 that on 09.02.2016 before 02:00 p.m. she had
recorded the statement of two independent witnesses who had
stated that they had come to know about the incident from the
newspaper but the written report was filed only on 09.2.2016 at
10:30 a.m., leading to lodging of FIR, thus it is intriguing as to
how the news regarding the alleged occurrence could have been
reported in the newspaper on 09.02.2016 itself.
189. One other aspect of the matter is as to whether the
prosecutrix and/or the Investigating Officer had gone to Pathra
English for investigation on 11.02.2016. In this regard, if the
evidence of PW-1 (elder sister of the prosecutrix), PW-2
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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(prosecutrix), PW-5 (Assistant Sub-Inspector of Police), PW-7
(Sub-Inspector of Police) and PW-15 (Investigating Officer) are
taken into consideration, it would transpire that the date and
time of taking the prosecutrix for investigation and returning
back from investigation is varying, thus a doubt is created as to
whether at all the prosecutrix was taken for investigation on
11.02.2016. Again, though PW-2 (prosecutrix) has not stated
about going to village Bhadokhra during the course of
investigation, however PW-5 (police official), PW-7 (police
official) and PW-15 (Investigating Officer) have stated about
going to village Bhadokhra, where they came to know about the
house in question. Yet again while PW-2 (prosecutrix) has stated
that when she was being taken to Pathra English in the night of
the occurrence i.e. 06.02.2016, she neither got down from the
vehicle at the brick kiln in question nor she could see outside the
vehicle since it was dark nor she had seen whether the brick kiln
had a boundary wall and whether bricks were kept there,
however in the deposition, the prosecutrix claims to have taken
the police to the brick kiln on her own and identified the same,
which definitely creates a doubt about the mode and manner of
occurrence and as to whether any occurrence had at all taken
place, as alleged. Another important inconsistency can be culled
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out from the fact that though PW-7 (Sub-Inspector of Police)
and PW-15 (Investigating Officer) have stated in paragraphs no.
10 and 62 of their deposition that they had used the police
vehicle for the purposes of investigation on 10/11.2.2016, after
calling for the same from the police line, however a bare perusal
of Defence Exhibit No. Z and Z/1 (R.T.I. information obtained
from the police line) would show that in between 09.02.2016 to
16.02.2016, no vehicle was given for conducting investigation
of the present case.
190. Thus, the aforesaid inconsistencies and contradictions in
the statement of the witnesses creates a doubt about the manner
in which the prosecutrix had identified either the brick kiln or
the building in question or the appellant of the first case. In fact,
a bare perusal of the evidence of PW-2 (prosecutrix), PW-5
(Assistant Sub-Inspector of Police), PW-6 (Assistant Sub-
Inspector of Police), PW-7 (Sub-Inspector of Police) and PW-15
(Investigating Officer) would show that there is material
contradiction in their statements with regard to the place from
where the building in question as also the appellant of the first
case was identified by the prosecutrix. The learned senior
counsel for the appellant of the first case has, during the course
of arguments asserted that the nearest point from where the
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appellant of the first case has been stated to have been identified
is 40-50 yards before the building, however a perusal of the
videos and photographs exhibited by both the parties would
show that it is not possible to do so on account of presence of
huge plantation there. In fact though the prosecutrix is stated to
have identified the appellant of the first case, whose photograph
was present on a poster at Nawada Chowk but the same has not
been exhibited and on the contrary though the prosecutrix had
passed through the Nawada Chowk while going to Hisua on
10.02.2016 as also while returning back from Hisua but she did
not find/identified any poster of the appellant of the first case at
that point of time at Nawada Chowk.
191. We find from the written report of the prosecutrix, her
statement recorded under Section 164 Cr.P.C. & her deposition
that there are several contradictions and inconsistencies in her
statement, which are being encapsulated herein below:-
(i) While in FIR, PW-2 has disclosed the name of the
husband of Sulekha Devi but in paragraph no. 118 of her
cross-examination she has stated that she is not aware of
the name of husband of Sulekha Devi further and as far as
her statement recorded under section 164 Cr.P.C is
concerned, she has not disclosed the name of the husband
of Sulekha Devi.
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(ii) PW-2, in paragraph no. 56 of her cross-examination
has stated that there was no blood stain on her Salwar but
PW-3 in paragraph no. 15 of her cross examination has
stated that she had seen blood stain on the clothes of the
prosecutrix and when she asked her about the same, she
did not say anything.
(iii) PW-2, in paragraph no. 67 of her cross-examination
has stated that she went for medical examination from
Police Station and her father and her sister (PW-1) did not
come to hospital for medical examination and she had
gone alone, however PW-1 has stated in paragraph no. 64
of her cross examination that she had gone to the hospital
along with the Prosecutrix for her medical examination
and her father (PW-4) might have come in another car as
also during the course of medical examination she along
with her father were sitting in the Hospital and after
completion of the medical examination of the Prosecutrix,
she also sat along with them.
(iv) PW-1, in paragraph no. 65 of her deposition has
stated that on 10.02.2016, the prosecutrix and PW-4 had
gone to the police station twice, firstly in the afternoon
when she along with PW-2 and PW-4 had gone to the
police station, whereafter they had returned back to the
residence in the evening and after one hour PW-2
(prosecutrix) and PW-4 had again gone to the police
station but in the night both of them did not return.
(v). Further, PW-2 in paragraph no. 68 of her cross
examination has stated that on 10.02.2016 police personal
had come to her house situated at Garhpar before
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afternoon and they had called PW-2 for investigation as
also she has stated in paragraph no. 69 of her cross
examination that no family member was present with her
during the course of investigation at Giriyak and her
father was sitting at the police station in the night,
however PW-15 in paragraph no. 56 of her cross
examination has stated that on 10.02.2016 at 10:30 PM
she had formed a team along with the prosecutrix and her
father for investigation and arresting the accused.
192. The aforesaid scrutiny and analysis of the evidence of the
Prosecution witnesses would depict presence of significant
contradictions on crucial details and moreover, the aforesaid
contradictions and inconsistencies pertain to the core elements
of the alleged crime which not only undermines their reliability
but also manifests that the witnesses are not truthful as also the
evidence is unreliable, hence no conviction can be based on the
evidence of such witnesses.
193. Therefore, it is discernible that not only the mode, manner
and place of occurrence have not stood proved conclusively but
the prosecutrix can also not be said to be truthful and a sterling
witness, hence her sole testimony cannot be relied upon for the
purposes of sustaining the conviction of the appellants.
Reference in this connection be had to a judgment rendered by
the Hon’ble Apex Court in the case of Santosh Prasad vs. The
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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State of Bihar, reported in (2020) 3 SCC 443, paragraphs no. 6
& 7 whereof are reproduced herein below:-
“6. Having gone through and considered the deposition
of the prosecutrix, we find that there are material
contradictions. Not only there are material
contradictions, but even the manner in which the alleged
incident has taken place as per the version of the
prosecutrix is not believable. In the examination-in-chief,
the prosecutrix has stated that after jumping the fallen
compound wall the accused came inside and thereafter
the accused committed rape. She has stated that she
identified the accused from the light of the mobile.
However, no mobile is recovered. Even nothing is on
record that there was a broken compound wall. She has
further stated that in the morning at 10 o’clock she went
to the police station and gave oral complaint. However,
according to the investigating officer a written complaint
was given. It is also required to be noted that even the
FIR is registered at 4.00 p.m. In her deposition, the
prosecutrix has referred to the name of Shanti Devi, PW 1
and others. However, Shanti Devi has not supported the
case of the prosecution. Therefore, when we tested the
version of PW 5, prosecutrix, it is unfortunate that the
said witness has failed to pass any of the tests of “sterling
witness”. There is a variation in her version about giving
the complaint. There is a delay in the FIR. The medical
report does not support the case of the prosecution. FSL
report also does not support the case of the prosecution.
As admitted, there was an enmity/dispute between both
the parties with respect to land. The manner in which the
occurrence is stated to have occurred is not believable.
Therefore, in the facts and circumstances of the case, we
find that the solitary version of the prosecutrix, PW 5
cannot be taken as a gospel truth at face value and in the
absence of any other supporting evidence, there is no
scope to sustain the conviction and sentence imposed on
the appellant and the accused is to be given the benefit of
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
259/315doubt.
7. In view of the above and for the reasons stated above,
the appeal is allowed. The impugned judgment and order
of conviction and sentence passed by the learned trial
court and confirmed [Santosh Prasad v. State of Bihar,
2018 SCC OnLine Pat 6648] by the High Court are
hereby quashed and set aside. The appellant is acquitted
from all the charges levelled against him and he be set at
liberty forthwith, if not required in any other case.”
194. It would also be appropriate to refer to a judgment
rendered by the Hon’ble Apex Court in the case of Krishan
Kumar Malik vs. The State of Haryana, reported in (2011) 7
SCC 130, paragraphs no. 31, 32, 42, 43, 44, 46 and 47 whereof
are reproduced herein below:-
“31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
appellant guilty of the said offences.
32. Indeed there are several significant variations in
material facts in her Section 164 statement, Section 161
statement (CrPC), FIR and deposition in court. Thus, it
was necessary to get her evidence corroborated
independently, which they could have done either by
examination of Ritu, her sister or Bimla Devi, who were
present in the house at the time of her alleged abduction.
The record shows that Bimla Devi though cited as a
witness was not examined and later given up by the
public prosecutor on the ground that she has been won
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42. On account of the aforesaid shortcomings,
irregularities and lacuna on the part of the prosecution,
in our considered opinion, it will not be safe to convict
the appellant.
43. With regard to the matching of the semen, we find it
from Taylor’s Principles and Practice of Medical
Jurisprudence, 2nd Edn. (1965) as under:
“Spermatozoa may retain vitality (or free motion) in
the body of a woman for a long period, and movement
should always be looked for in wet specimens. The
actual time that spermatozoa may remain alive after
ejaculation cannot be precisely defined, but is usually
a matter of hours. Seymour claimed to have seen
movement in a fluid as much as 5 days old. The
detection of dead spermatozoa in stains may be made
at long periods after emission, when the fluid has been
allowed to dry. Sharpe found identifiable spermatozoa
often after 12 months and once after a period of 5
years. Non-motile spermatozoa were found in the
vagina after a lapse of time which must have been 3
and could have been 4 months.”
Had such a procedure been adopted by the prosecution,
then it would have been a foolproof case for it and
against the appellant.
44. Now, after the incorporation of Section 53-A in the
Criminal Procedure Code w.e.f. 23-6-2006, brought to
our notice by the learned counsel for the respondent
State, it has become necessary for the prosecution to go
in for DNA test in such type of cases, facilitating the
prosecution to prove its case against the accused. Prior
to 2006, even without the aforesaid specific provision in
CrPC the prosecution could have still resorted to this
procedure of getting the DNA test or analysis and
matching of semen of the appellant with that found on the
undergarments of the prosecutrix to make it a foolproof
case, but they did not do so, thus they must face the
consequences.
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46. Thus, looking to the matter from all angles, we are of
the considered opinion that the conviction of the
appellant cannot be upheld.
47. Thus, the appeal is hereby allowed. The judgment and
order of conviction as recorded by the trial court and
confirmed by the learned Single Judge of the High Court
qua the appellant are hereby set aside and quashed. The
appellant is acquitted of all the charges. He be set at
liberty forthwith if not required in any other criminal
case.
195. At this juncture, it may be relevant to state that though the
appellant of the first case was taken for interrogation by the
police, after he had surrendered before the learned Trial Court,
however his medical examination was not conducted.
196. The other issue which is required to be determined is the
significance of medical evidence on record and its credibility as
also whether the same corroborates the prosecutrix’s account of
assault (rape) or not. The evidence on record shows that the
prosecutrix was first medically examined by Dr. Krishna on
09.02.2016, however the medical report of Dr. Krishna has been
withheld conspicuously by the prosecution, nonetheless we have
perused the evidence of PW-15 (Investigating Officer), from
which we find that in paragraph no. 73 of her cross-
examination, PW-15 has stated that on 12.02.2016 she had
received the report of Dr. Krishna dated 09.02.2016, which was
noted in the case diary, wherein it has been written as follows:-
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
262/315“X-ray handed over to the police”, however PW-15 has stated
that no x-ray plates were given to her along with the medical
report. PW-15 has also stated in her evidence that she had
perused the said medical report of Dr. Krishna and the said
report mentions that there is no evidence of “forceful sexual
intercourse” as also the said doctor has found that the
prosecutrix is used to sex. As far as the report of Medical Board
dated 17.02.2016 is concerned, which has been marked as
Exhibit-4, we find that the Medical Board, upon examination of
the prosecutrix, found her to be conscious, oriented, average
built, her secondary sexual characters were well developed, no
injury had occurred and no injury was found on the private parts
of her body. Upon P.V. examination of the prosecutrix, it has
been found that vagina admitted two fingers easily, hymen is old
ruptured and no injury is present inside the vagina. In fact
vaginal Swab was taken for microscopic examination and upon
microscopic examination, no spermatozoa was found, R.B.C.-
Nil, W.B.C.-Nil and Epithelial cell was present (1+). The Urine
Pregnancy test of the prosecutrix was negative. As far as dental
examination is concerned, 28 teeth were found to be present and
the findings of the x-ray examination has also been stated in the
said report. The final opinion given in the said report is that on
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examination, the age of the prosecutrix is in-between 16 to 17
years and rape could not be ruled out.
197. Thus we find from the medical report dated 17.02.2016,
prepared by the Medical Board, after examination of the
prosecutrix that the Medical Board has recorded the following
findings:-
(i) No injury occurred.
(ii) No injury on the private part of the body.
(iii) Vagina admitted two fingers easily.
(iv) Hymen old ruptured.
(v) No injury inside the vagina.
(vi) Spermatozoa not found.
(vii) Rape cannot be ruled out
198. Now coming to the ocular evidence on the aforesaid
issue, we find that PW-11, Dr. Kumkum Kumari has stated in
paragraph no. 5 of her cross-examination that in case some
virgin and nubile girl is forcibly raped, injuries can be present in
the outer and inner part of the private parts and possibility is
there of injuries being present on the buttock, on the thighs and
the back. PW-11 Dr. Kumkum Kumari has also stated in her
evidence that no proof of sexual intercourse was found on the
body of the prosecutrix during the course of her examination. In
fact PW-13 Dr. Kumari Preeti Ranjana has stated that no
evidence of sexual violence was found on the body of the
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
264/315prosecutrix. PW-15 (Investigating Officer) has also stated in her
evidence that the F.S.L. team had submitted a report on
16.02.2016, wherein also no evidence of rape was found. It is
evident from a bare perusal of the finding of Dr. Krishna, as
mentioned in her medical report dated 09.02.2016 as also the
opinion/findings of the Medical Board recorded in the medical
report dated 17.02.2016, as aforesaid qua the prosecutrix that
the possibility of sexual intercourse/rape having been committed
with her has been ruled out. In fact the Medical Board has
conclusively found that the prosecutrix is not a virgin and is
used to sexual intercourse as also hymen is old ruptured and no
injury is present either on the body of the prosecutrix or on her
private parts much less inside the vagina. Thus, we find from the
evidence placed on record, as aforesaid that the medical
evidence does not support the commission of rape. It is a well
settled law that in case medical evidence does not support the
case of prosecution relating to offence of rape, the sole
testimony of the prosecutrix ought to be discarded. In this
connection, reference be had to a judgment rendered by the
Hon’ble Apex Court in the case of Sham Singh vs. State of
Haryana, reported in (2018) 18 SCC 34, para nos. 6, 9, 13, 18,
24 and 25 whereof are reproduced herein below:-
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265/315“6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity.
The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. If the evidence of
the prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statement in
material particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it may
look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of
an accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
court must be alive to its responsibility and be sensitive
while dealing with cases involving sexual molestations or
sexual assaults.
9. The medical examination of the victim was conducted
by Dr Rekha Singh (PW 6), Medical Officer, General
Hospital, Palwal. She has deposed that the victim was
aged about 15 years at the time of the incident and had
sustained an injury on the left side of the forehead and
such injury is nothing but a small abrasion with crust
formation. The organs of generation were fully developed
and the secondary organs were also fully developed. The
vagina of the victim permitted two fingers. However, the
doctor observed the absence of hymen and did not
mention the age of tear of the hymen because the tear
was old. The vaginal swab and the salwar worn by the
victim during the course of the incident were sent by the
doctor to forensic sciences laboratory for chemical
examination, but no presence of semen was found on any
of these exhibits. Finally, however, the doctor has opined
that the possibility of sexual assault upon the victim
cannot be ruled out, though she did not specify as to
whether the sexual assault was in the recent past.
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13. The aforementioned witnesses are the only relevant
prosecution witnesses for deciding this appeal. Looking
to the above evidence, it is amply clear that the case of
the prosecution, as made out, appears to be artificial and
concocted. It may not be probable to commit rape in
one’s own house in front of the sister, children, wife and
mother. If in actuality the incident had taken place, the
medical report would have gone against the accused. Be
that as it may, before commenting anything further, it is
better to discuss the evidence of the defence also.
18. The evidence of DW 1 and DW 2 was not shaken in
the cross-examination. There is nothing on record to
discard the evidence of these witnesses. DW 1 and DW 2
are panchayatdars and are independent witnesses.
Moreover, DW 1 is a relative of both, the victim and the
accused and he does not have any grudge against the
victim. The evidence of DW 1 and DW 2 have practically
remained untouched and their version fully supports the
stand taken by the accused persons. It is specifically
deposed by DW 1 that he has seen the house of Laxmi
(PW 10), where the victim was staying, and the said
house is having bathroom and latrine. If it is so, there
was no occasion for the victim to go out of the house for
the purpose of urinating. These facts, coupled with the
fact that there is no medicolegal report to support the
case of the victim relating to offence of rape, and as there
are no injuries on the body of the victim, which is also
admitted by PW 10, it appears that the prosecution has
cooked up the story against the accused for the reasons
best known to them.
24. We find that the trial court and the High Court have
convicted the accused merely on conjectures and
surmises. The Courts have come to the conclusion based
on assumptions and not on legally acceptable evidence,
but such assumptions were not well founded, inasmuch as
such assumptions are not corroborated by any reliable
evidence. Medical evidence does not support the case of
the prosecution relating to offence of rape.
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25. For the reasons aforementioned, the offence of rape
does not stand proved. Accordingly, the appellant
deserves to be acquitted, by allowing this appeal. As
mentioned supra, the first accused Jai Singh has already
served out the sentence imposed upon him, and the
appellant before this Court has already served the
sentence of seven years out of the total sentence of ten
years imposed upon him.”
199. It is equally a well settled law that where the medical
evidence rules out the possibility of the ocular evidence being
true, the ocular evidence may be disbelieved. Reference in this
connection be had to a judgment rendered by the Hon’ble Apex
Court in the case of Abdul Sayed vs. State of Madhya Pradesh,
reported in (2010) 10 SCC 259, paragraph no. 39 whereof is
reproduced herein below:-
“39. Thus, the position of law in cases where there is a
contradiction between medical evidence and ocular
evidence can be crystallized to the effect that though the
ocular testimony of a witness has greater evidentiary
value vis-a-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of
evidence. However, where the medical evidence goes so
far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be
disbelieved.”
200. It would be apropos to refer to yet another judgment on
the issue of medical evidence not supporting the case of
prosecution i.e. the one rendered by the Hon’ble Apex Court in
the case of Tameezuddin vs. State (NCT of Delhi), reported in
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
268/315
(2009) 15 SCC 566, paragraph nos. 9, 11, 13 and 16 whereof are
reproduced herein below:-
“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the
story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter. We are of
the opinion that the story is indeed improbable.
11. As already mentioned above the medical evidence
does not support the commission of rape. Moreover, the
two or three persons who were present in the factory
premises when the rape had been committed were not
examined in court as witnesses though their statements
had been recorded during the course of the investigation.
In this background, merely because the vaginal swabs
and the salwar had semen stains thereon would, at best,
be evidence of the commission of sexual intercourse but
not of rape. Significantly also, the semen found was not
co-related to the appellant as his blood samples had not
been taken.
13. We also see from the orders passed by this Court from
time to time and particularly the order of 25-10-2004 that
the counsel for the appellant had pointed out that though
the appellant had been sentenced to imprisonment for a
term of seven years, he had already exceeded that period
but was still in custody and he was accordingly bailed out
after verifying this fact on 16-11-2004.
16. We accordingly allow the appeal, set aside the
judgments of the trial court and the High Court and order
the appellant’s acquittal.”
201. We find that it has been consistently held that if evidence
of the prosecutrix is unsupported by any medical evidence or the
whole surrounding circumstances are highly improbable and
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belie the case set up by the prosecution, the Court shall not act
on the solitary evidence of the prosecutrix. In this connection,
reference be had to a judgment rendered by the Hon’ble Apex
Court in the case of Manak Chand @ Mani vs. State of
Haryana, reported in (2023) SCC online SC 1397, paragraphs
no. 8 to 12, 16 and 19 whereof are reproduced hereinbelow:-
“8. This was reiterated by this Court in Sadashiv Ramrao
Hadbe v. State of Maharashtra, (2006) 10 SCC 92:
“It is true that in a rape case the accused could be
convicted on the sole testimony of the prosecutrix, if it
is capable of inspiring confidence in the mind of the
court. If the version given by the prosecutrix is
unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and
belie the case set up by the prosecutrix, the court shall
not act on the solitary evidence of the prosecutrix.”
9. Both the prosecutrix as well as the accused have a
right for a fair trial, and therefore when the statement of
the prosecutrix does not inspire confidence and creates a
doubt, the court must look for corroborative evidence.
Relying upon the case of Gurmit Singh (supra) this court
in Raju v. State of Madhya Pradesh, (2008) 15 SCC
133 held as under:
“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more
so as her statement has to be evaluated on a par with
that of an injured witness and if the evidence is
reliable, no corroboration is necessary. Undoubtedly,
the aforesaid observations must carry the greatest
weight and we respectfully agree with them, but at the
same time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
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11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the accused
as well. The accused must also be protected against the
possibility of false implication, particularly where a
large number of accused are involved. It must, further,
be borne in mind that the broad principle is that an
injured witness was present at the time when the
incident happened and that ordinarily such a witness
would not tell a lie as to the actual assailants, but there
is no presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration.”
10. Does the testimony of the prosecutrix in the present
case inspire confidence? We are afraid it does not. Let us
appreciate the facts once again. Although, the first
incident of rape is alleged to be of 12.09.2000, the
prosecutrix does not disclose this to anyone immediately.
She then alleges rape again on two or three different
occasions later, though no date and time are disclosed.
She only discloses it to her mother after one and half
months. It has then come in the evidence led by none
other but the prosecution (in the school register submitted
in the court by PW-2 i.e., Ram Sahay), that the
prosecutrix had attended her classes in the school on
12.09.2000 at Dabwali, where she resides with her
parents. We must note that she has alleged rape on the
same day at village Sanwat Khera, where she was staying
at the relevant time with her sister in her matrimonial
house. This seems improbable, if not impossible. The
other aspect is the admitted position of the prosecution
itself that the FIR was ultimately filed as the initial
proposal of marriage was then turned down. All these
facts do cast a doubt on the story of the prosecution.
11. The prosecution then has also relied upon the medical
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report of the prosecutrix given by Dr. Kulwinder Kaur as
PW-1 which states that the hymen of the prosecutrix was
ruptured, and therefore she was raped. To the contrary
when we examine the same medical report in detail an
entirely different picture emerges. The Trial Court,
however relied upon the evidence placed by the prosecution
regarding the date of birth of the prosecutrix, which was
recorded in the school register as 04.04.1987 and
therefore at the time of the alleged offence she was only
thirteen and half years of age and thus the finding of the
Trial Court is that, even if it is assumed for the sake of
argument that the prosecutrix was a consenting party to
the sexual intercourse, her consent would be immaterial
since she was less than sixteen years of age and therefore
the offence of rape stands proved. The High Court in the
appeal, however, even discards the presumption of the
prosecutrix being a consenting party and has completely
relied upon the testimony of the prosecutrix regarding
rape and has dismissed the appeal.
12. The evidence, as to the age or even rape has not been
examined properly by the Trial Court as well as the High
Court. Courts must examine each evidence with open
mind dispassionately as an accused is to be presumed
innocent till proved guilty. In our adversarial system of
criminal jurisprudence, the guiding principle shall
always be the Blackstone ratio which holds that it is
better that ten guilty persons escape than one innocent be
punished.
16. Secondly, we cannot lose sight of the fact that since
age was such a crucial factor in the present case, the
prosecution should have done a bone ossification test for
determination of the age of the prosecutrix. This has not
been done in the present case. On the other hand, as per
the clinical examination of the prosecutrix which was
done by PW-1, Dr. Kulwinder Kaur on 28.10.2000 and
which has also been referred to in the preceding
paragraph of the present judgment, we find that the
secondary sex characteristics of the prosecutrix were well
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developed. The doctor in her report mentions that the
prosecutrix is a “well built adult female”. At another
place it mentions “well developed pubic hair” and
“external genitalia were fully developed and normal”. It
then records her age as sixteen years as told to her by the
mother of the prosecutrix. The report records that there
were no external marks of injury over her breast, neck,
face, abdomen and thigh. The report then concludes, inter
alia, about her age as under:
“At the time of medical examination of the patient, no
force seems to have been used against her. I cannot
opine about the age of the patient on the basis of
development of her pubic hairs and genitalia etc. The
patient was habitual to sexual intercourse because her
labia minora was hypertrophied and hymen admitted
two fingers.”
19. Under these facts, and on the weight of the evidence
placed before the Trial Court, we are of the considered
opinion that as regarding the age of the prosecutrix, no
definite conclusion could have been made. The
prosecution has not successfully proved that the
prosecutrix was less than sixteen years of age at the time
of the alleged commission of the crime, and therefore the
benefit ought to have been given to the appellant.
Secondly, as to the factum of rape itself, we are not
convinced that an offence of rape is made out in this case
as it does not meet the ingredients of Rape as defined
under Section 375 of the IPC, as we do not find any
evidence which may suggest that the appellant, even
though had sexual intercourse with the prosecutrix, it was
against her will or without her consent.”
202. It is also worthy to note that the conduct of a person
making a statement should also be considered along with
intervening circumstances so as to arrive at a just conclusion
though it is a settled law that in a rape case the accused can be
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convicted on the sole testimony of the prosecutrix, if it is
unimpeachable and beyond reproach and is capable of inspiring
confidence in the mind of the Courts, however if the testimony
of the prosecutrix is unsupported by any medical evidence, the
entire associated/ surrounding circumstances leave a mark of
doubt to treat the testimony of the prosecutrix natural and
truthful to inspire confidence, then the Court shall not act on the
solitary evidence of the prosecutrix. It has been consistently
held that not only the prosecutrix but the accused also has a
right for a fair trial. Reference be had to a judgment rendered by
the Hon’ble Apex Court in the case of Zahira Habibulla H.
Sheikh v. State of Gujarat, reported in (2004) 4 SCC 158,
paragraphs no. 38 to 40 whereof are reproduced hereinbelow:-
“38. A criminal trial is a judicial examination of the
issues in the case and its purpose is to arrive at a
judgment on an issue as to a fact or relevant facts which
may lead to the discovery of the fact issue and obtain
proof of such facts at which the prosecution and the
accused have arrived by their pleadings; the controlling
question being the guilt or innocence of the accused.
Since the object is to mete out justice and to convict the
guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities and
must be conducted under such rules as will protect the
innocent, and punish the guilty. The proof of charge
which has to be beyond reasonable doubt must depend
upon judicial evaluation of the totality of the evidence,
oral and circumstantial, and not by an isolated scrutiny.
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39. Failure to accord fair hearing either to the accused or
the prosecution violates even minimum standards of due
process of law. It is inherent in the concept of due process
of law, that condemnation should be rendered only after
the trial in which the hearing is a real one, not sham or a
mere farce and pretence. Since the fair hearing requires
an opportunity to preserve the process, it may be vitiated
and violated by an overhasty, stage-managed, tailored
and partisan trial.
40. The fair trial for a criminal offence consists not only
in technical observance of the frame and forms of law,
but also in recognition and just application of its
principles in substance, to find out the truth and prevent
miscarriage of justice.”
(emphasis supplied)
203. In the case of Naveen v. State of M.P., reported in (2023)
17 SCC 381, the issue regarding significance of a fair trial has
been considered in paragraphs no. 19 to 21, which are
reproduced hereinbelow:-
19. In Best Bakery, this Court has observed that the
principle of fair trial now informs and energises many
areas of the law. It is reflected in numerous rules and
practices. It is a constant, ongoing development process
continually adapting to new and changing circumstances,
and exigencies of the situation–peculiar at times and
related to the nature of crime, persons involved–directly
or operating behind social impact and societal needs and
even so many powerful balancing factors which may
come in the way of administration of criminal justice
system. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim, and
the society.
20. It was further observed that there can be no
analytical, all-comprehensive or exhaustive definition of
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determined in seemingly infinite variety of actual
situations with the ultimate object in mind viz. whether
something that was done or said either before or at the
trial deprived the quality of fairness to a degree where a
miscarriage of justice has resulted. Each one has an
inbuilt right to be dealt with fairly in a criminal trial.
Denial of a fair trial is as much injustice to the accused
as is to the victim and the society. Fair trial obviously
would mean a trial before an impartial Judge, a fair
prosecutor, and the atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is
being tried is eliminated. It is inherent in the concept of
due process of law, that condemnation should be rendered
only after the trial in which the hearing is a real one, not
sham or a mere farce and pretence. Since fair hearing
requires an opportunity to preserve the process, it may be
vitiated and violated by an overhasty, stage-managed,
tailored and partisan trial. It is thus settled that a hasty
trial in which proper and sufficient opportunity has not
been provided to the accused to defend himself/herself
would vitiate the trial as being meaningless and stage-
managed. It is in violation of the principle of judicial
calm.
21. The principle of “judicial calm” in the context of a
fair trial needs to be elaborated for its observance in
letter and spirit. In our view, in the hallowed halls of
justice, the essence of a fair and impartial trial lies in the
steadfast embrace of judicial calm. It is incumbent upon a
Judge to exude an aura of tranquillity, offering a
sanctuary of reason and measured deliberation. In the
halls of justice, the gavel strikes not in haste, but in a
deliberate cadence ensuring every voice, every piece of
evidence, is accorded its due weight. The expanse of
judicial calm serves not only as a pillar of constitutional
integrity, but as the very bedrock upon which trust in a
legal system is forged. It is a beacon that illuminates the
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path towards a verdict untainted by haste or prejudice,
thus upholding the sanctity of justice for all.
204. Now coming back to the present case, we find that there
are such circumstances which create a doubt about the case as
set up by the prosecutrix/prosecution. PW-3 (sister of the
prosecutrix) in paragraph no. 3 of her cross-examination has
stated that birthday of the daughter of Chhoti Devi, namely
Tuktuk was celebrated on 30.01.2016, wherein Sulekha Devi
and Chhoti Devi had called her, the prosecutrix and her elder
sister but they had not gone to the said birthday party since they
were not on good terms. The prosecutrix in her evidence has
stated that no incident of rape had ever taken place earlier,
nonetheless, we find from the medical evidence on record that
the prosecutrix has been found to be used to sex, hymen has
been found to be old ruptured, no injury has occurred anywhere
on the body of the prosecutrix much less on her private parts
and there is no evidence of forceful sexual intercourse. Another
circumstance which we would like to point out is regarding the
conduct of the prosecutrix, her sister and father in filing the
written report. The prosecutrix has stated in her evidence that
she had narrated the incident to her elder sister (PW-1) on
07.02.2016, whereafter PW-1 had informed their father on
07.02.2016 itself that the prosecutrix was medically ill,
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however, he was not informed about the commission of rape
with the prosecutrix since their mother was ill and then the
father of the prosecutrix i.e. PW-4 had reached Biharsharif in
the evening of 08.02.2016, whereafter the entire incident was
narrated to him, whereupon on the next day i.e. 09.02.2016 at
about 10:00 a.m., the prosecutrix along with PW-1 (elder sister
of the prosecutrix) and their father i.e. PW-4 had left their
residence to lodge FIR, however Exhibit-J/2 read with Exhibit-
K shows that PW-1 did not make any call to her father either on
06th or 07th or 08th of February, 2016 and for the first time PW-4
(father of the prosecutrix) had called PW-1 (elder sister of the
prosecutrix) on 09.02.2016 at 06:52:07 and again at 10:21:08.
This fact also stands corroborated from the evidence of PW-15
(Investigating Officer), especially paragraph no. 98 of her
deposition. Thus, these circumstances makes the entire
occurrence in question highly improbable, raises a question
mark regarding the bonafide of the prosecutrix, her sisters and
her father and negate the case set up by the prosecution.
205. Another circumstance which we may delve upon is that
though the prosecutrix was to return from the birthday party in
the evening around 06:00 p.m. on 06.02.2016, nonetheless when
the prosecutrix had not returned back not only in the evening
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but all throughout the night, neither any urgency was shown by
the sisters of the prosecutrix i.e. PW-1 and PW-3 much less her
brother nor they had informed their father i.e. PW-4 nor they
had approached the police station which is at a distance of only
200-300 yards from their residence. Yet another circumstance
which is intriguing is that though the prosecutrix had to go to a
birthday party on 06.02.2016 at Bharao Chowk situated near her
residence at Biharsharif itself, however the prosecutrix had not
at any point of time raised any objection or alarm or had made
attempts to escape when she was instead firstly taken to
Ramchandarpur Bus Stand from where she was made to sit on a
bus and taken to Bakhtiyarpur to the house of the mother of
Sulekha Devi, namely Radha Devi, from where she was made to
sit on a Bolero vehicle and taken to Giriyak and then to the
house in question where the alleged occurrence is stated to have
taken place, situated at Pathra English. Thus, considering the
entire surrounding circumstances, which are highly implausible,
the fact that the evidence of the prosecutrix is unsupported by
any medical evidence as also having regard to the contradictions
and inconsistencies in the statement of the prosecutrix/
prosecution witnesses made at different points of time i.e. in the
written report/statement made under Section 164 Cr.P.C./
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deposition, the case set up by the prosecution appears to be
highly improbable and irresolute. In this connection, we would
like to refer to a judgment rendered in the case of Md. Ali vs.
State of U.P., reported in (2015) 7 SCC 272, paragraph no. 29
whereof is reproduced herein below:-
“29. Be it noted, there can be no iota of doubt that on the
basis of the sole testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a conviction can be
based. In the case at hand, the learned trial Judge as well
as the High Court have persuaded themselves away with
this principle without appreciating the acceptability and
reliability of the testimony of the witness. In fact, it would
not be inappropriate to say that whatever the analysis in
the impugned judgment, it would only indicate an
impropriety of approach. The prosecutrix has deposed
that she was taken from one place to the other and
remained at various houses for almost two months. The
only explanation given by her is that she was threatened
by the accused persons. It is not in her testimony that she
was confined to one place. In fact, it has been borne out
from the material on record that she had travelled from
place to place and she was ravished a number of times.
Under these circumstances, the medical evidence gains
significance, for the examining doctor has categorically
deposed that there are no injuries on the private parts.
The delay in FIR, the non-examination of the witnesses,
the testimony of the prosecutrix, the associated
circumstances and the medical evidence, leave a mark of
doubt to treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence. It can be stated
with certitude that the evidence of the prosecutrix is not
of such quality which can be placed reliance upon.”
206. We would also refer to yet another judgment rendered by
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the Hon’ble Apex Court in the case of Mussudin Ahmad vs.
The State of Assam, reported in (2009) 14 SCC 541, paragraphs
no.10 to 18 whereof are reproduced herein below:-
“10. So far as the question of age of the prosecutrix is
concerned, PW 1 Dr. Pratap Ch. Sarma who had
examined her, opined that she was 18 years of age.
According to the prosecutrix she was only 13 years of age
at the time of incident. PW 2 Abdul Hai Laskar, the
informant, deposed that the prosecutrix was 13/14 years
of age. However, PW 3 Mrs. Hasmat Ara Begum kept
silence on this point. There is nothing on record to show
as on what basis, PW 2 Abdul Hai Laskar had given her
age. It appears very unnatural as none of the family
members of the prosecutrix comes to the scene. Her
parents or either of them or any other family member
could be most reliable and natural witness on the point of
her age. PW 2 Abdul Hai Laskar, in his examination-in-
chief stated as under: “Later the girl’s mother came and
took her away. At present she is staying with her
parents.” Thus, it cannot be assumed that the prosecutrix
did not have parents or other family members. The
prosecution for the reasons best known to it examined her
employer PW 2 Abdul Hai Laskar and his wife PW 3
Hasmat Ara Begum but did not examine any of her family
member on the point of age.
11. It is the duty of the party to lead the best evidence in
its possession which could throw light on the issue in
controversy and in case such material evidence is
withheld, the court may draw adverse inference under
Section 114 Illustration (g) of the Evidence Act, 1872
notwithstanding that the onus of proof did not lie on such
party and it was not called upon to produce the said
evidence (vide Gopal Krishnaji Ketkar v. Mohd. Haji
Latif [AIR 1968 SC 1413] ).
12. The trial court and the High Court proceeded with
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prosecution case had been that the prosecutrix went to
the zoo along with Suleman and on her return from the
zoo the appellant had seen both of them together and
slapped Suleman who ran away and thereafter the
appellant took the prosecutrix on the pretext of taking her
to movie and roamed; took her on a rickshaw to the hotel
where she was kept and raped.
13. However, before the High Court the case has been
entirely different as in para 5 of the High Court judgment
it has been stated that when the prosecutrix came out
from the house of the informant PW 2 Abdul Hai Laskar
the appellant met her and proposed to take her to witness
a movie and she went along with him. In para 2, the High
Court has mentioned the facts that as per the FIR lodged
by PW 2 Abdul Hai Laskar, to the effect that “on the
previous evening, the appellant-accused Mussauddin
Ahmed @ Musa entered into the house and forcibly
abducted his maidservant”. There had been material
contradictions regarding the factual aspects of the
incident itself.
14. There is nothing on record to show, or furnishing any
explanation as to why the investigating officer did not
seize any material objects like clothes, blood samples,
etc. from the prosecutrix and the place of occurrence. PW
4 Mira Begum, the prosecutrix has stated in her
examination-in-chief as under: “He took me to a room at
Paltan Bazar. There the accused forcibly tears open my
clothes.” The torn clothes were not recovered by the
investigating officer.
15. The IO did not make any effort to take the semen,
blood samples, etc. from the appellant which could have
given the prosecution an opportunity to obtain medical
reports of the appellant as it was necessary to establish
the guilt of the appellant. No person has been examined
from the hotel to identify the appellant or the prosecutrix
as the IO has only seized the register of the hotel to
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appellant Mussauddin Ahmed and Marzina Begum as
husband and wife. Admittedly, the name of the prosecutrix
was not Marzina Begum. Therefore, some person from the
hotel should have been examined to identify her as well
as the appellant.
16. Learned Standing Counsel for the State, Mr Jr.
Luwang, could not satisfy the court as to why in the
absence of any allegation of threat or coercion, the
prosecutrix could not have raised the alarm or informed
any person on the road. Nor could he explain as to why
an independent witness or an employee of the hotel was
not examined and why the parents of the prosecutrix were
not examined to find out her age.
17. The prosecutrix appears to be a lady used to sexual
intercourse and a dissolute lady. She had no objection in
mixing up and having free movement with any of her
known person, for enjoyment. Thus, she appeared to be a
woman of easy virtues.
18. In this view of the above, we are of the considered
opinion that the prosecution failed to prove its case
against the appellant beyond reasonable doubt. The
appeal is allowed. The impugned judgments of the High
Court and the trial court are set aside. The appellant is
acquitted of the charge under Section 376 IPC. The
appellant is on bail. His bail bonds are discharged.”
207. At this juncture, we would also like to refer to the well
settled principle of law that even in a case of rape the onus is
always on the prosecution to prove, affirmatively each
ingredient of the offence it seeks to establish and such onus
never shifts as also it is no part of the duty of the defence to
explain as to how and why in a rape case the victim and other
witnesses have falsely implicated the accused and moreover,
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there is an initial presumption of innocence of the accused as
also the prosecution has to bring home the offence against the
accused by reliable evidence. Reference in this connection be
had to a judgment rendered by the Hon’ble Apex Court in the
case of Narendra Kumar vs. State (NCT of Delhi), reported in
(2012) 7 SCC 171, paragraphs no. 19 and 27 to 33 whereof are
reproduced hereinbelow:-
“19. If the evidence on record referred to hereinabove is
appreciated, the following picture emerges:
(i) The prosecutrix and the appellant were known to each
other for a long time and there had been some
relationship/intimacy between them.
(ii) Sahib Rao (PW 3), husband of the prosecutrix did not
like the said relationship.(iii) There has been some
incident two-three days prior to the actual incident on
16-9-1998 as Indira, prosecutrix had lodged some
complaint against the appellant in the police as well as
with the parents of the appellant.
(iv) The complaint lodged by the prosecutrix two-three
days prior to 16-9-1998 with the police had never been
placed on record.
(v) The alleged incident dated 16-9-1998 had occurred
on the side of the main road which remains busy and had
sufficient light and in spite of the fact that the prosecutrix
raised hue and cry, nobody came to help her.
(vi) There are contradictions on the issue as to whether
the prosecutrix went to the working place of her husband
and from there she proceeded to police station with him
as evidence on record is also to the contrary i.e she
straightaway went to the police station and one
constable had gone and called her husband.
(vii) Medical evidence does not positively support the
case of the prosecution as Dr Nisha (PW 9) deposed that
seeing her condition and torn clothes it could be said
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(viii) Admittedly, there is the most material contradiction
in the medical evidence and ocular evidence. Dr Nisha
(PW 9) had categorically recorded in the report and
deposed in the court that the prosecutrix was having nail
marks on her breast though the case of Indira,
prosecutrix had been that she was having nail marks on
her throat.
(ix) The deposition of Lekh Raj (PW 6), SI, about the
arrest of the appellant between intervening night of 30-
10-1998 and 1-11-1998 at about 11.45 p.m., seems to be
improbable. According to him, the prosecutrix walked
from her house to the police station at a distance of 3 km
at midnight to inform the police that the appellant was
sitting on the stop of Khirki, Press Enclave. The witness
reached there with prosecutrix and police constables. He
found the appellant sitting at the said stop and from there
he was arrested. The witness did not prepare the arrest
memo with the help of any independent witness. If the
appellant was sitting at the bus stop at midnight some
other persons could have been also there.
(x) The defence version taken by the appellant and
depositions of Chandan Singh (DW 1) and Surendra
Kumar (DW 2) in support thereof, have not only been
ignored/brushed aside by the courts below rather no
reference has been made to the same.
(xi) The contradictions referred to hereinabove and
particularly in respect of the nail marks on her body
could not be said only to be minor contradictions which
did not go to the root of the matter. Some of the
contradictions/embellishments/improvements are of
greater magnitude and had serious impact on the case.
(xii) The FSL report dated 6-5-1999 reveal that the
bloodstains/semen on the prosecutrix kurta/salwar
belonged to the AB blood group though the blood group
of the appellant is O (+) and thus, the FSL report does
not support the case of the prosecution.
27. In view of the provisions of Sections 53 and 54 of the
Evidence Act, 1872, unless the character of the prosecutrix
itself is in issue, her character is not a relevant factor to be
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taken into consideration at all.
28. The courts while trying an accused on the charge of
rape, must deal with the case with utmost sensitivity,
examining the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the evidence of the witnesses which are not
of a substantial character.
29. However, even in a case of rape, the onus is always on
the prosecution to prove, affirmatively each ingredient of
the offence it seeks to establish and such onus never shifts.
It is no part of the duty of the defence to explain as to how
and why in a rape case the victim and other witnesses have
falsely implicated the accused. The prosecution case has to
stand on its own legs and cannot take support from the
weakness of the case of defence. However great the
suspicion against the accused and however strong the
moral belief and conviction of the court, unless the offence
of the accused is established beyond reasonable doubt on
the basis of legal evidence and material on the record, he
cannot be convicted for an offence. There is an initial
presumption of innocence of the accused and the
prosecution has to bring home the offence against the
accused by reliable evidence. The accused is entitled to the
benefit of every reasonable doubt.
30. The prosecution has to prove its case beyond
reasonable doubt and cannot take support from the
weakness of the case of defence. There must be proper legal
evidence and material on record to record the conviction of
the accused. The conviction can be based on sole testimony
of the prosecutrix provided it lends assurance of her
testimony. However, in case the court has reason not to
accept the version of the prosecutrix on its face value, it
may look for corroboration. In case the evidence is read in
its totality and the story projected by the prosecutrix is
found to be improbable, the prosecutrix’s case becomes
liable to be rejected.
31. The court must act with sensitivity and appreciate the
evidence in totality of the background of the entire case and
not in the isolation. Even if the prosecutrix is of easy
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virtues/unchaste woman that itself cannot be a
determinative factor and the court is required to adjudicate
whether the accused committed rape on the victim on the
occasion complained of.
32. The instant case is required to be decided in the light of
the aforesaid settled legal propositions. We have
appreciated the evidence on record and reached the
conclusions mentioned hereinabove. Even by any stretch of
imagination it cannot be held that the prosecutrix was not
knowing the appellant prior to the incident. The given facts
and circumstances make it crystal clear that if the evidence
of the prosecutrix is read and considered in totality of the
circumstances along with other evidence on record, in
which the offence is alleged to have been committed, we are
of the view that her deposition does not inspire confidence.
The prosecution has not disclosed the true genesis of the
crime. In such a fact situation, the appellant becomes
entitled to the benefit of doubt.
33. In view of the above, the appeals succeed and are
allowed. The judgment and order dated 25-3-2009 passed
by the High Court of Delhi in Criminal Appeal No. 53 of
2000 and that of the trial court dated 7-12-1999 are hereby
set aside. The appellant is on bail, his bail bond stands
discharged.”
208. Now coming to the Call Detail Records of the mobile
numbers used by the appellants of the aforesaid appeals/
prosecutrix/sister of the prosecutrix/father of the prosecutrix, we
find that records have been produced both by the prosecution as
also by the defence apart from PW-14, Alok Kumar posted at
the District Information Unit, Nalanda at the residence of the
Superintendent of Police, Nalanda having also produced
analysis report (Exhibit-7) with regard to the mobile numbers in
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question, and certificates having also been produced under
Section 65B of the Act, 1872 by the employees/nodal officers of
Vodaphone mobile company, Idea mobile company, Airtel
mobile company and Reliance mobile company. From a bare
perusal of the said records, the following findings emerge:-
(i) The analysis report furnished by PW-14 with regard to
the mobile phone of Sulekha Devi bearing no.
9162857459 shows that on 06.02.2016 after 15:14:53
hours, the said mobile was found to be outside the tower
location of Biharsharif. At 16:50:02 hours, the said
mobile was found at Bakhtiyarpur. After 18:13:36 hours
of 06.02.2016, no call was either made or received over
the said phone, hence CDR cannot specify the location of
mobile no. 9162857459 belonging to Sulekha.
(ii) In paragraph no. 13 of his cross-examination, PW-14
has stated that the mobile number of Tusi Devi is
8651305263 and 8298800821 and the tower location of
the said mobiles were not found to be either within the
district Nalanda or district Nawada on 06.02.2016.
Similarly, on 06.02.2016, the tower location of Mobile
no. 9162857459 belonging to Sulekha Devi, after
15:14:53 hours, was not found within the tower location
of District-Nawada or District-Nalanda.
(iii) In paragraph no. 14 of his cross-examination, PW-14
has stated that on 06.02.2016, no call was made in
between mobile nos. 9162246321 (Rajballabh Yadav) and
9162857459 (Sulekha Devi).
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(iv) In paragraph no. 18 of his cross-examination, PW-14
has stated that on 06.02.2016, a call lasting 26 seconds
was made from mobile number 8651305263 (Tusi Devi)
to mobile number 9162246321 (Rajballabh Yadav), which
he has mentioned at page no. 10 of his analysis report. He
has further stated that from the same former mobile
number, another call was made to the latter mobile
number, which lasted approximately 21 seconds.
(v) In paragraph no. 23 of his cross-examination, PW-14
has stated that the location of mobile no. 8651305263
(Tusi Devi) on 06.02.2016 and 07.02.2016, was found to
be at Madhopur, Bakhtiyarpur, District-Patna. Similarly,
location of mobile no. 8298800821 (Tusi Devi) was also
found at Bakhtiyarpur on 06.2.2016. In the CDR, location
of both the mobile numbers is shown at Bakhtiyarpur and
both the mobile numbers belong to Tusi Devi.
(vi) In paragraph no. 24 of his cross-examination, PW-14
has stated that mobile no. 9162857459, belonging to
Sulekha Devi was showing its location during all the calls
made on 06.02.2016, either at Nalanda or Bakhtiyarpur
and the last call from this mobile number was made at
18:13:36 hours.
(vii) In paragraph no. 26 of his cross-examination, PW-14
has stated that as per his analysis report, mobile no.
9162246321 belonging to Rajballabh Yadav was active,
however the direction from Pathra English tower in which
it was active was not mentioned in his analysis report.
(viii) In paragraph no. 29 of his cross-examination, PW-
14 has stated that between 01.2.2016 and 06.02.2016, a
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total of 55 calls were made from mobile no. 9162857459
(Sulekha Devi) to mobile no. 9801265522. Similarly, in-
between 07.02.2016 and 09.02.2016, 9 calls were
exchanged between the aforesaid mobile numbers.
Furthermore, from the mobile number of Sulekha Devi, a
total of 13 calls were made in-between 01.02.2016 and
09.02.2016 to another mobile no. i.e., 9835274090.
Additionally, 14 calls were recorded in-between
01.02.2016 and 09.02.2016 between Sulekha Devi’s
mobile no. and mobile no. 9835071905.
(ix) The C.D.R. (call detail records) shows that the
aforesaid Appellants No. 2, 3 and 6 had not made any
phone calls to the appellant of the first case on
06.02.2016.
(x) Now coming to the call detail records of mobile phone
of PW-1 and PW-4, it is revealed that before 09.02.2016,
no call had been made in-between either of them and they
had talked only on 09.02.2016 and on that day the first
call was made by PW-4 to PW-1 at 06:52 AM and the
second call was made at 10:21 AM whereas, it is claimed
by PW-4 that they had reached the police station at 10:00
AM, meaning thereby that PW-1 had not disclosed about
the incident to PW-4 on 07.02.2016.
(xi) The call detail records of the mobile number
9801848312 (registered in the name of one Arun Kumar,
husband of Sulekha Devi) shows that there was no
conversation in between the said mobile number owned
by Sulekha Devi and the appellant of the 1st case on the
intervening night of 6/7.02.2016 and moreover, the
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mobile location of the said appellant was also not found
within the district of Nalanda and Nawada.
209. The aforesaid analysis of the Call Detail Records of the
mobile numbers used by the appellants of the aforesaid appeals/
prosecutrix/sister of the prosecutrix/father of the prosecutrix etc.
would demonstrate that no call was made from the mobile of
Sulekha Devi to the mobile of Rajballabh Yadav on 06.02.2016
and the location of the mobile of Suleka Devi was found to be
outside the range of tower located at Biharsharif but not within
the district of Nalanda and Nawada. Further no call was made
from the mobile phone of Sulekha Devi on 06.02.2016 after
18:13:36 hours. As far as mobile phones (two in number) of
Tusi Devi are concerned, the tower location of the said mobile
phones were not found to be either within the district of Nalanda
or Nawada on 06.02.2016 and the location of the said mobile
phones was found to be at Madhopur, Bakhtiyarpur, District-
Patna. It has also transpired that no calls were made by the
appellants no. 2, 3 and 6 to the appellant of the first case on
06.02.2016. It is evident from paragraph no. 26 of the cross-
examination of PW-14 that though mobile no. 9162246321,
belonging to the appellant of the first case was found to be
active, however the analysis report of PW-14 does not disclose
the directional data from Pathra English tower with which the
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mobile number was connected. In fact, there is only one tower
of Bharti Airtel company located at village Pathra English
which is apparent from the CDR detail (Exhibit-28) and the
same covers all the locations claimed to have been visited by the
appellant of the first case starting from 08:30 p.m. on 6.2.2016
upto 05:00 a.m. of 07.02.2016. As per CDR, driver Bishnu was
present at Pathra English right from 08:18 p.m. on 06.02.2016
till he left Pathra English on 07.02.2016 at 04:00 a.m.,
whereafter also his mobile phone has been found to be within
the range of the tower located at Nalanda district. The CDR of
the two mobile phones mentioned in the fardbeyan i.e.
7856940431 being used by PW-1, although registered in the
name of Tunni Devi and the other bearing 9798206864, being
used by PW-4 would show that no conversation had taken place
in between the said two numbers on 06.02.2016, 07.02.2016 and
08.02.2016, however, conversation took place on 09.02.2016 at
06:52:07 hours, 10:21:08 hours and 19:19:18 hours. Exhibit J
and J-1 would show that several calls were received on the
mobile being used by PW-1 and few outgoing calls had also
been made from the said mobile in between 06th to 08th
February, 2016. Exhibit-K shows the location of the mobile
phone of PW-4 to be at Sultanpur, P.S.-Rahui, Nalanda on
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09.02.2016 at 06:52:07 hrs., at Biharsharif on 09.02.2016 at
10:21:08 hrs. and at Sultanpur, P.S. Rahui, Nalanda on
09.02.2016 at 19:19:18 hrs.. Thus, a bare perusal of the
aforesaid analysis of the CDR makes the sequence of events as
set up by the prosecution doubtful.
210. At this juncture, we would like to point out that the
requisite certificates under Section 65-B (4) of the Act, 1872
with regard to the CDR and CAF of the mobile numbers in
question have been produced by the employees/nodal officers of
the respective mobile companies, who are also witness in the
present case. Thus, the admissibility of the electronic record in
question is not an issue in the present case. In this regard
reference be had to a judgment rendered by the learned Three
Judges’ Bench of the Hon’ble Apex Court in the case of Arjun
Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors.,
reported in (2020) 7 SCC 1. We would also put a word of
caution to the effect that though C.D.R. data can be an important
and effective piece of evidence which may facilitate the Court in
ascertaining the location of the accused involved in commission
of offence as also the location of the complainant, however
C.D.R. data can only be used as a supportive and corroborative
piece of evidence. As far as the present case is concerned, the
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C.D.R., as aforesaid coupled with the evidence on record depict
grave lacunas in the case as set up by the prosecution.
211. Last but not the least, we would also advert to the plea of
alibi raised by the appellant of the first case, in support whereof
the defence has produced several witnesses i.e. DW-1 (Umed
Singh Yadav), Manager of TMC Guest House, DW-2 (Vinay
Kumar Ranjan), brother-in-law of the appellant of the first case,
DW-4 (Kailash Prasad Yadav) Ward Councillor, DW-5 (Ram
Ratan Singh), DW-6 (Prashant Rai), DW-11 (Bhante Jambudeep
@ Lalan Manjhi) and DW-12 (Dinesh Kumar Akela). A
collective reading of the evidence of the said defence witnesses
would show that the appellant of the first case had arrived at the
TMC Guest House on 06.02.2016 in between 10:45-11:00 p.m.
and had left around 01:00 a.m., whereupon he had arrived at
Prajatantra Chowk at 01:30 a.m. of 07.02.2016 where he had
supervised the cleaning of drains, had stayed there for 1-1½ half
hours and had then reached Gola Road, Barahgania Pyne,
Nawada for the purposes of supervising cleaning of drains at
about 03:00 a.m. in the morning of 07.02.2016 and then he had
reached Harishchandra Stadium in the morning of 07.02.2016 at
about 3:30-4:00 a.m., where he had stayed for 40-45 minutes,
whereafter he had returned to his house at Pathra English. Thus,
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the appellant of the first case is not stated to be at his home, i.e.
at the alleged place of occurrence at the time when the
prosecutrix has alleged commission of rape by him with her. At
this juncture we may advert to the well settled law that the
defence witnesses are entitled to equal respect and treatment as
that of the prosecution and the evidence tendered by the defence
witnesses cannot always be termed to be a tainted one by reason
of the factum of the witnesses being examined by the defence.
The issue of credibility and trustworthiness ought also to be
attributed to the defence witnesses on a par with that of the
prosecution. Reference in this connection be had to a judgment
rendered by the Hon’ble Apex Court in the case of Munshi
Prasad & Ors. vs. The State of Bihar, reported in (2002) 1
SCC 351.
212. We shall now advert to the contentions raised by the Ld.
Amicus Curiae, Ms. Anukriti Jaipuriyar, Advocate, appearing
for the prosecutrix. The first submission made by the learned
Amicus Curie appearing for the prosecutrix is that such cases as
the present one should be dealt with sensitivity and the evidence
of a prosecutrix need not be tested with the same amount of
suspicion as that of an accomplice as also minor contradictions
should be ignored. We are of the view that there is no quarrel
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with the proposition that the cases like the present one should be
dealt with sensitivity, however we find from the ocular evidence
on record, especially that of PW-1, PW-2, PW-4, PW-5, PW-7
and PW-15 as also from perusal of the written report of the
prosecutrix and the statement of the witnesses recorded under
Section 164 Cr.P.C. that there are several significant
contradictions, inconsistencies and embellishments on crucial
details, which also pertains to the core element of the alleged
crime and the same not only undermines the reliability of the
evidence on record but also manifest that the witnesses are not
truthful and the evidence is unreliable, thus the said
contradictions are not so minor so as to be ignored, hence no
conviction can be based on the evidence of such witnesses.
213. The learned Amicus Curiae has next submitted that non-
presence of external or internal injuries on the body of the
prosecutrix cannot lead to an inference that the present case is a
case of consent since no such question was put to the
prosecutrix in cross-examination. We find that the issue in the
present case is as to whether rape was committed with the
prosecutrix or not, however regarding the said issue, upon
considering the evidence on record, we have not found any
evidence which may show that ingredients of rape as defined
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under Section 375 of the IPC are present so as to demonstrate
that the appellant of the first case had committed rape with the
prosecutrix.
214. The learned Amicus Curiae has next argued that the
natural conduct of the prosecutrix and the chain of events goes
to establish that the prosecutrix is a sterling witness. This aspect
of the matter has already been dealt with at length in the
preceding paragraphs and we have come to a finding that the
conduct of the prosecutrix leaves a mark of doubt to treat her
testimony as so natural and truthful so as to inspire confidence
and moreover, all the intervening circumstances as also the
aforesaid material contradictions in the statement of the
prosecutrix would show that she is not a reliable witness and
does not fall within the ambit of a sterling witness, hence her
testimony cannot be relied upon for the purposes of adjudging
the guilt of the appellants.
215. Yet another argument raised by the Amicus Curiae is that
sole testimony of the prosecutrix requires no corroboration and
the same is enough to prove the guilt of the accused beyond all
reasonable doubt. In this regard, it would suffice to state that
though there is no quarrel that conviction can definitely be
based on the sole testimony of the prosecutrix, however only if
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the evidence of the prosecutrix is trustworthy, unblemished,
credible and that of sterling quality and as far as the present case
is concerned, we have already come to a finding that the
evidence of the prosecutrix is not that of a sterling quality and is
not such upon which reliance can be placed.
216. It has next been argued that the testimony of the
prosecutrix stands on a higher pedestal than the injured witness,
a proposition to which also there cannot be any quarrel,
however the caveat is that the court is required to be extremely
careful while examining the sole testimony of the prosecutrix
and in case the same inspires confidence in the mind of the
Court, the accused can be convicted on the basis of sole
testimony of the prosecutrix but if the version given by the
prosecutrix is unsupported by any medical evidence or the
whole surrounding circumstances are highly improbable and
negate the case set up by the prosecutrix, the Court is not
required to act on the solitary evidence of the prosecutrix.
217. The learned Amicus Curiae has contended that the delay
in lodging FIR has stood explained but we find from the
materials on record that though the occurrence had taken place
in the intervening night of 06/07.02.2016, however the FIR was
lodged belatedly only on 09.02.20216 and moreover, the
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prosecutrix has stated in her evidence that she had narrated the
incident to her elder sister (PW-1) on 07.02.2016, whereafter
PW-1 had informed the father on 07.02.2016 itself that the
prosecutrix was medically ill but he was not informed about the
commission of rape with the prosecutrix since their mother was
ill, after which the father of the prosecutrix i.e. PW-4 had
reached Biharsharif in the evening of 08.02.2016, whereupon
the entire incident was narrated to him and then on the next day
i.e. 09.02.2016 at about 10:00 a.m., the prosecutrix along with
PW-1 and their father i.e. PW-4 had left their residence to lodge
FIR, nonetheless on the contrary, Exhibit-J/2 read with Exhibit-
K shows that PW-1 did not make any call to her father either on
06th or 07th or 08th of February, 2016 and for the first time PW-4
had called PW-1 on 09.02.2016 at 06:52:07 hrs. and again at
10:21:08 hrs.. This fact also stands corroborated from the
evidence of PW-15 (Investigating Officer), especially from
paragraph no. 98 of her deposition. Thus, these circumstances
make the entire occurrence in question highly improbable, raises
a question mark regarding the bonafide of the prosecutrix, her
sisters and her father and negate the case set up by the
prosecution.
218. The learned Amicus Curiae has tried to impress upon us
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that the provisional matric certificate submitted by the
prosecutrix by way of Exhibit-3 (with objection), shows date of
birth of the prosecutrix to be 4.1.2000, hence she was definitely
a minor as on the date of commission of rape by the appellant of
the first case with her. It has been submitted that since the said
provisional matriculation certificate is a public document, the
same is not required to be proved like any other document. The
learned Amicus Curiae has pointed out that even the Medical
Board has opined, in its report dated 17.02.2016 that the age of
the prosecutrix is in-between 16-17 years and has further relied
upon the evidence of PW-4, PW-8, PW-9, PW-10, PW-11 and
PW-13. In this regard, it would suffice to state that upon a
detailed analysis and considering the law laid down by the
Hon’ble Apex Court in the case of R.V.E. Venkatachala
Gounder (supra), to the effect that in case objection is raised
with regard to any document being exhibited by the prosecution
then the same is evidently directed towards the irregularity and
insufficiency of the mode and manner of proving the said
document, thus the prosecution is required to cure its defect, we
have come to a finding that in the present case the prosecution
ought to have proved Exhibit-3 in the manner as postulated
under Sections 61 to 73 of the Act, 1872, however the same
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having not been done, Exhibit-3 cannot be held to be a due
proof of its contents, consequently it cannot be considered as a
proof of age of the prosecutrix. As regards the report of the
Medical Board dated 17.02.2016, opining therein that the age of
the prosecutrix is in between 16-17 years, we find that no
Radiologist was a part of the Medical Board, hence neither
radiological test was conducted nor expert opinion of the
Radiologist was sought for, which is not only important but also
conclusive in determining the age of the prosecutrix on the basis
of ossification test and moreover, there is no proof on record to
show that the set of x-ray plates relied upon by the Medical
Board pertains to the prosecutrix, apart from the fact that the
finding of the Dental Surgeon i.e. PW-10 is also contrary to the
well settled principles of medical science. The Hon’ble Apex
Court in the case of Vinod Katara (supra) has held that bone
ossification test is not an exact science and is not conclusive for
age determination because it does not reveal the exact age of the
person but the radiological examination leaves a margin of two
years on either side of the age range as prescribed by the test.
Hence, applying the said principle to the present case, if two
years are added to either 16 or 17, the prosecutrix would
definitely be a major. We have already gone through the
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evidence of the members of the Medical Board i.e. PW-8, PW-9,
PW-10, PW-11, PW-12 and PW-13 as also the report of the
Medical Board dated 17.02.2016 and have come to a finding
that the opinion recorded in the report of the Medical Board
dated 17.02.2016 cannot be said to be based upon the prescribed
standard medical procedure for age determination, hence the
said report dated 17.02.2016 is not reliable, therefore, the
opinion of the Medical Board, as aforesaid, cannot be said to be
a conclusive proof of the age of the prosecutrix.
219. As far as the ocular evidence of PW-4 (father of the
prosecutrix) with regard to the age of the prosecutrix is
concerned, we have already discussed his evidence in the
preceding paragraphs and have found that he has admitted in
paragraph no. 8 of his cross-examination that he cannot say as to
in which year he had got his respective daughters enrolled at the
Primary School at Sultanpur. PW-4 has also stated in his cross-
examination that he had not got the birth of his children
(including the prosecutrix) registered and he had also not given
any documentary proof of their age at the time of their
enrolment at the school in question, however he had noted the
date of birth of all his children in separate diaries. We find from
the evidence on record that PW-4 has withheld such an
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important evidence pertaining to the age of the prosecutrix
inasmuch as he could have very well produced the aforesaid
diaries in which he had noted the date of birth of his children,
which leads us to assume that such evidence, if produced would
have been unfavourable to the prosecution. Reference be had to
Section 114 Illustration (g) of the Act, 1872 which allows the
Court to draw an adverse inference against a party for non-
production of material evidence or witnesses within their
control. Thus the prosecutrix/ the prosecution has failed to bring
on record any admissible document regarding age of the
prosecutrix as also has failed to prove the age of the prosecutrix,
more so to the effect that she was a minor on the date of
occurrence, even by way of adducing ocular evidence, hence we
find that there is no proof that the prosecutrix was below the age
of 18 years as on the date of alleged occurrence. Therefore, the
provisions of the POCSO Act, 2012 shall not apply in the
present case.
220. The learned Amicus Curiae has next contended that the
FSL report and the medical examination report of the
prosecutrix is irrelevant in the present case since the prosecutrix
had washed her clothes twice with soap and water and
moreover, though the incident had taken place in the night of
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06/07.02.2016, the medical examination was held only on
17.02.2016, i.e. after a lapse of about 11 days but still the
medical report dated 17.02.2016 does not rule out the possibility
of rape. Regarding this aspect of the matter, we find that the
earliest/first medical examination of the prosecutrix was done
by Dr. Krishna on 09.02.2016 and the evidence on record would
bear it out that the said medical report of Dr. Krishna states that
there is no evidence of “forceful sexual intercourse” as also the
said doctor has found that the “victim is used to sex”. However,
the said report of Dr. Krishna dated 9.2.2016 has been withheld
conspicuously by the prosecution. It is also apparent from the
report of the Medical Board dated 17.02.2016 (Exhibit-4), that
the Medical Board, upon examination of the prosecutrix, found
her secondary sexual characters to be well developed, no injury
had occurred on her body, no injury was found on the private
parts of her body, vagina admitted two fingers easily, hymen is
old ruptured and no injury was present inside the vagina. Thus,
not only the earliest medical report of Dr. Krishna dated
09.02.2016 but also the medical report dated 17.02.2016
assumes significance. At this juncture, we may observe that it is
a well settled law that where the medical evidence rules out the
possibility of the ocular evidence being true and does not
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support the case of the prosecution relating to the offence of
rape, not only the ocular evidence may be disbelieved but also
the sole testimony of the prosecutrix ought to be discarded.
221. We shall now proceed to examine the impugned judgment
of conviction and sentence passed by the learned Trial Court. A
conscientious examination of the impugned judgment, in the
light of the totality of facts and circumstances as also the
evidence on record, as indicated hereinabove, reveals that the
learned Trial Court has convicted the aforesaid appellants
merely on conjectures and surmises and it has come to a
conclusion based on assumptions and not legally acceptable
evidence inasmuch as such assumptions are not corroborated by
any reliable evidence and moreover, several material aspects of
the case have either been summarily disregarded or addressed in
a sweeping generalisation. The finding of the learned Trial
Court of there being no inconsistency in the prosecution case is
also negated from the evidence discussed herein above in the
preceding paragraphs which also renders the testimony of the
prosecutrix to be wholly unreliable resulting in her not falling
within the category of sterling witness, thus the learned Trial
Court has erred by treating the testimony of prosecutrix to be
reliable and unimpeachable as also considering the same to be
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the sole basis for conviction of the appellants, though the
contradictions and inconsistencies present in the present case
pertains to the core element of the alleged crime, which not only
undermines the reliability of the witnesses but also shows that
they are not truthful as also the evidence is unreliable upon
which no conviction can be based.
222. The learned Trial Court has also erred by holding that
both the place of occurrence and the accused i.e. Rajballabh
Yadav have stood identified by the prosecutrix and the same has
also stood corroborated by the evidence of PW-5, PW-6, PW-7
and PW-15, inasmuch as the evidence on record would show
that neither the mode and manner nor the place of occurrence
has stood proved and moreover, the manner in which
identification of the appellant of the first case is stated to have
been done by the prosecutrix is highly improbable. Much
reliance has been placed by the learned Trial Court on the call
detail records, especially with regard to the mobile number of
the appellant of the first case being within the range of mobile
tower of Pathra English at the time of commission of the crime,
however on the contrary PW-14 has specifically deposed that
although the mobile number of the appellant of the first case
was found to be active but his analysis report did not disclose
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the directional data from Pathra English tower with which the
said mobile number was connected, more so for the reason that
there is only one mobile tower in the entire village of Pathra
English. The learned Trial Court failed to consider the well
settled law that CDR data can only be used as a supportive and
corroborative piece of evidence and the same is required to be
corroborated with other material evidence on record in order to
come to a definitive and conclusive finding but in the present
case the CDR/ analysis report coupled with the evidence on
record depicts grave lacunas in the case as set up by the
prosecution.
223. The learned Trial Court has erroneously placed reliance
on Exhibit-3 i.e. the provisional marks sheet of the prosecutrix
issued by the Bihar School Examination Board for coming to a
finding that her age is below 18 years, inasmuch as it failed to
consider that the said provisional marks sheet was though
marked as Exhibit-3 with objection but the same was never
proved by the prosecution during the course of Trial and further
there is no medical evidence on record to suggest that the
prosecutrix is below the age of 18 years, hence the learned Trial
Court erred by not considering that the provisions of the
POCSO Act would not apply in the present case, consequently
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the learned Trial Court’s observation that the appellants were
involved in immoral trafficking of a minor as part of their
criminal conspiracy also falls flat to the ground and does not
stand substantiated in the present case.
224. The learned Trial Court has also erred by coming to a
finding that since there was lapse of 11 days in conduct of the
medical examination of the prosecutrix, which was conducted
on 17.02.2016, material evidence had been lost resulting in the
findings of the medical examination of the victim being
affected. The evidence on record would show that the earliest/
first medical examination of the prosecutrix was done by Dr.
Krishna on 09.02.2016 and the medical report of Dr. Krishna
states that there is no evidence of “forceful sexual intercourse”
as also the said doctor has found that the “victim is used to sex”.
As far as the report of Medical Board dated 17.02.2016
(Exhibit-4) is concerned, the Medical Board, upon examination
of the prosecutrix, found that neither injury had occurred on the
body nor injury was found on the private parts of her body,
vagina admitted two fingers easily, hymen is old ruptured and
no injury is present inside the vagina. Thus, not only the earliest
medical report of Dr. Krishna dated 09.02.2016 but also the
medical report dated 17.02.2016 assumes significance. The
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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learned Trial Court has erred by not relying on the aforesaid
report of Dr. Krishna dated 09.02.2016 on an atrocious pretext
that no conclusion can be drawn from the said report. Thus, the
medical evidence definitely rules out the possibility of the
ocular evidence being true and does not support the case of the
prosecution relating to the offence of rape.
225. As regards the plea of alibi taken by the appellant of the
first case to have been found to be untrue by the learned Trial
Court, we find from the evidence led by the defence that a cast
iron case of plea of alibi has been put forth by the defence.
Lastly, the learned Trial Court has tried to dispute the CDR and
CAF of the two mobile phones being used by PW-1 and PW-4,
as produced by DW-14, however it is apparent from the
evidence of DW-14 that he has not only proved the CDR and
CAF of the said two mobile phones running into 6 pages and 4
pages respectively but has also stated in his evidence that the
computer in question is being operated under his supervision
and he had obtained the CDR from Mumbai Server by getting it
to his company’s server at Patna, whereafter he had taken out
the print out of the CDR of the said two mobile phones, which
he had duly signed and the same also bears the stamp of his
mobile company, which have been marked as Exhibit-J series
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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and K series. In fact DW-14 has also stated in his evidence that
he has filed the requisite certificate under Section 65-B of the
Indian Evidence Act in the Court which has been typed by him,
bears his signature, bears the seal of the company and was
prepared in the office of his company, which has been marked
as Exhibit-N. Thus the learned Trial Court had no reason to not
rely upon the said CDR. Therefore, taking into account an
overall perspective of the entire case, we find that the learned
Trial Court has committed a gross error in holding that the
evidence produced by the prosecution goes to prove beyond all
reasonable doubt the commission of offence by the aforesaid
appellants.
226. Thus, based on an encapsulation of the above mentioned
facts and circumstances of the case, taking into account an
overall perspective of the entire case, as discussed herein above,
having perused the entire evidence on record, both ocular and
documentary as also medical evidence, we find that the
prosecution has failed to either prove that the prosecutrix was
below the age of 18 years or to establish the foundational facts.
We have already come to a finding that the prosecution/ the
prosecutrix has failed to prove the age of the prosecutrix, more
so to the effect that she was a minor on the date of occurrence,
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even by way of adducing ocular/ documentary evidence, hence
we find that there is no proof that the prosecutrix was below the
age of 18 years as on the date of occurrence, especially
considering the fact that if at all the medical report dated
17.02.2016, prepared by the medical Board after examining the
prosecutrix, opining the age of the prosecutrix to be in between
16 to 17 years is considered to be of any worth, then applying
the principle laid down by the Hon’ble Apex Court in the case
of Vinod Katara (supra), if two years are added to either 16 or
17, the prosecutrix would definitely be a major. Therefore, we
are of the view that the provisions of the POCSO Act, 2012
shall not be applicable in the present case, hence the conviction
of the appellants of the first, second and third case recorded by
the learned Trial Court under the provisions of the Protection of
Children from Sexual Offences Act, 2012, as aforesaid, is not
sustainable and requires interference.
227. We have also analysed the written report/statements made
by the witnesses, including the prosecutrix under Section 164
Cr.P.C. and the deposition of witnesses, especially PW-1 to PW-
4 and find that the same are full of inconsistencies,
contradictions and embellishments, which all create a doubt
about the credibility of the case as set out by the prosecution. It
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also transpires from the evidence on record that the mode and
manner of incident as also happening of the occurrence in
question, itself is doubtful and apparently there are material
contradictions in between the version of the prosecutrix as
stated in the written report vis-a-vis her statement made under
Section 164 Cr.P.C. and her testimony before the learned Trial
Court. The conduct of the prosecutrix, her sisters and father
coupled with other circumstances definitely shows that the
evidence of the prosecutrix is untrustworthy and lacks
credibility, hence the prosecutrix cannot be said to be a sterling
witness, thus no reliance can be placed upon the same. A
threadbare analysis of the evidence of the prosecution witnesses
depicts presence of significant contradictions on crucial details
and such contradictions and inconsistencies pertain to the core
elements of the alleged crime which not only undermines their
reliability but also manifests that the witnesses are not truthful
as also the evidence is unreliable, hence no conviction can be
based on the evidence of such witnesses.
228. Therefore, it is discernible that not only the mode, manner
and place of occurrence have not stood proved conclusively but
the prosecutrix can also not be said to be a truthful and a sterling
witness, hence her sole testimony cannot be relied upon for the
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purposes of sustaining the conviction of the appellants. The
medical evidence on record rules out that the prosecutrix had
any recent sexual intercourse, however on the contrary
demonstrates that she is used to sexual intercourse, neither
injury had occurred on her body nor injury was found on the
private parts of her body, vagina admitted two fingers easily,
hymen is old ruptured and no injury is present inside the vagina.
Thus, the evidence placed on record, as aforesaid, especially the
medical evidence does not support the commission of rape. We
also find that the conduct of the prosecutrix, her sisters and
father as also the entire surrounding circumstances, as discussed
herein above in the preceding paragraphs are implausible, the
evidence of the prosecutrix is unsupported by any medical
evidence apart from there being grave contradictions and
inconsistencies in the statement of the prosecutrix/ prosecution
witnesses made at different points of time i.e. in the written
report/statement made under Section 164 Cr.P.C./ deposition,
hence the case set up by the prosecution appears to be highly
improbable and irresolute. We are thus of the considered view
that the prosecution has failed to prove beyond all reasonable
doubt that an offence of rape is made out in the present case,
more so as the ingredients of Rape as defined under Section 375
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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of the IPC are not met in the present case. Consequently, for the
reasons mentioned in the forgoing paragraphs, the offence of
rape does not stand proved. Therefore, conviction of the
aforesaid appellants under the provisions of the Indian Penal
Code, 1860, as aforesaid, by the learned Trial Court is also not
sustainable and requires interference.
229. Having already held the findings of conviction recorded
by the learned Trial Court under the provisions of the POCSO
Act, 2012 and the Indian Penal Code, 1860 to be not
sustainable, requiring interference, consequently we find that
the conviction of the appellants of the second, third, fourth, fifth
and sixth case under the provisions of the Immoral Traffic
(Prevention) Act, 1956 lacks any basis and is also not
sustainable.
230. On a collective appreciation of the evidence led by the
prosecution, considering the facts and circumstances of the case,
as discussed herein above and for the foregoing reasons, we are
of the considered view that there are compelling reasons in the
present case which necessitates that the appellants of the
aforesaid appeals be given benefit of doubt. Accordingly, the
findings of conviction recorded by the learned Trial Court, in
our opinion, is not sustainable and requires interference,
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therefore the judgment of conviction dated 15.12.2018 and order
of sentence dated 21.12.2018, passed by the learned Special
Judge (Elected Member of Parliament, Member of Legislative
Assembly and Member of Legislative Council), Bihar, Patna in
Special Case No. 145 of 2018 [arising out of Mahila (Nalanda)
P.S. Case No. 15 of 2016], are set aside. Accordingly, the
appellants of the aforesaid appeals are acquitted of the charges
levelled against them.
231. The appellant of the first case, i.e. Rajballabh Prasad @
Rajballabh Yadav (in Criminal Appeal (DB) No. 224 of 2019),
the appellant of the second case, i.e. Sulekha Devi (in Criminal
Appeal (DB) No. 165 of 2019) and the appellant of the third
case, i.e. Radha Devi (in Criminal Appeal (DB) No. 200 of
2019) who are in custody, are directed to be released from jail,
forthwith unless required in any other case. As far as the
appellant of the fourth case, i.e. Sandeep Suman @ Pushpanjay
(in Criminal Appeal (DB) No. 218 of 2019) is concerned, he is
already on bail, hence he is discharged from the liabilities of his
bail bonds. Now coming to the appellant of the fifth case, i.e.
Tusi Devi (in Criminal Appeal (DB) No. 226 of 2019) and the
appellant of the sixth case, i.e. Chhoti Devi @ Amrita (in
Criminal Appeal (DB) No. 243 of 2019), we have been
Patna High Court CR. APP (DB) No.224 of 2019 dt.14-08-2025
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informed that they have already been released from Jail upon
completion of their sentence, after grant of remission.
232. Accordingly, the aforesaid appeals, i.e. Criminal Appeal
(DB) No. 224 of 2019, Criminal Appeal (DB) No. 165 of 2019,
Criminal Appeal (DB) No. 200 of 2019, Criminal Appeal (DB)
No. 218 of 2019, Criminal Appeal (DB) No. 226 of 2019 and
Criminal Appeal (DB) No. 243 of 2019 stand allowed.
233. Before parting with these appeals, we place on record our
appreciation for the learned Amicus Curiae, Ms. Anukriti
Jaipuriyar, Advocate, in extending her able and invaluable
assistance to the Court, appointed to espouse the cause of the
prosecutrix.
(Mohit Kumar Shah, J)
I agree.
(Harish Kumar, J)
(Harish Kumar, J)
S.Sb/-
AFR/NAFR AFR CAV DATE 07.05.2025 Uploading Date 14.08.2025 Transmission Date 14.08.2025
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