Patna High Court
Ravindra Musahar vs The State Of Bihar on 16 January, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.694 of 2021
Arising Out of PS. Case No.-41 Year-2013 Thana- TANDWA District- Aurangabad
======================================================
Ravindra Musahar, Son of Madan Musahar @ Yogendra Musahar, Resident of
Village - Nabinagar Pokhara, P.S.- Nabinagar, Aurangabad.
... ... Appellant
Versus
1. The State Of Bihar
2. Ramashish Mehta, son of Adya Mahto, R/o village-Parsiya, P.S.-Tandwa,
District-Aurangabad.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Bachan Jee Ojha, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 16-01-2025
This appeal has been preferred for setting aside the
impugned judgment of conviction dated 18.06.2021 (hereinafter
referred to as the ‘impugned judgment’) and the order of sentence
dated 25.06.2021 (hereinafter referred to as the ‘impugned order’)
passed by learned Additional Sessions Judge-VI-cum-Special Judge,
POCSO Act, Aurangabad (hereinafter referred to as the ‘learned trial
court’) in G.R. Case No. 1821/2013/01/2014 arising out of Tandwa
P.S. Case No. 41 of 2013 (CIS No. 15630 of 2014) whereby and
whereunder the appellant has been held guilty and convicted under
Section 395 and Section 376(D) of the Indian Penal Code (in short
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‘IPC‘) and Section 6 of the Protection of Children from Sexual
Offences (POCSO) Act and he has been ordered to undergo ten years
rigorous imprisonment and to pay a fine of Rs. 10,000/- under Section
395 IPC, rigorous imprisonment for life and to pay a fine of Rs.
50,000/- for the offences punishable under Section 376(D) IPC. The
learned trial court has not passed any separate sentence under the
POCSO Act keeping in view Section 42 of the POCSO Act and taking
note that instead of sentencing the accused under Section 6 of the
POCSO Act, the court is sentencing him under Section 376(D) IPC.
Prosecution Story
2. The prosecution case is based on a written application
dated 08.08.2013 (Exhibit ‘4’) submitted by father of the victim who
has been examined as PW-2 in course of trial. In his written
application addressed to the Officer-in-Charge of Tandwa Police
Station, the informant (PW-2) alleged that when he along with his
family members were present in his house on 07.08.2013 at about
11:00 PM (night hours), four persons crossed over the boundary wall
and entered into his house, the accused persons opened the main door.
According to the informant, one person was holding a small weapon
in his hand and others were having lathi-danda. He alleged that by
putting the family members under threat, they locked all the family
members in a pucca room of the house and put a lock on the door
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from outside. Thereafter, it is alleged that the accused persons took
away all the ornaments, utensils and a sum of Rs. 18,000/- with
clothes and they also took away one mobile phone. After they went
away, somehow the informant came outside the room and raised
hulla. There were six miscreants and they were in between the age of
25-30 years.
3. On the basis of the written application (Exhibit ‘4’)
investigation started. A perusal of the endorsements made on the
margin portion of the written application would show that the case
was registered under Section 395 IPC. The formal FIR, though
contains a statutory requirement, as held by the Hon’ble Supreme
Court, and it requires to mention the date of dispatch of the
application to the court of learned jurisdictional Magistrate, in the
present case no such information has been furnished but from the
endorsement made at the top of the written application at the right
hand side it appears that the written information which is the basis of
the FIR reached the court of learned Chief Judicial Magistrate (CJM)
on 12.08.2013 i.e. after four days.
4. In course of investigation of the case, the I.O. got
recorded statement of the daughter of the informant under Section
164 CrPC on 29.08.2013 in the court of learned jurisdictional
Magistrate 1st Class, Aurangabad. In her statement under Section 164
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CrPC, the daughter of the informant came with an altogether different
story. She disclosed her age as thirteen years old and a student of 9 th
Class at Golden Future School. She has stated that on 07.08.2013,
she, her parents, two brothers, grandmother and grandfather all had
gone asleep in their house. In the night in between 10:00-11:00 pm,
six persons stealthily entered into the house and called her
grandfather to awake, on hearing the voice, all the family members
got awoken. All the six persons were armed with rama, danda, raghi
and lathi and they were threatening to explode the family members.
They got all the family members locked in a room whereafter they
lifted the box and attache and thereafter they again opened the door
and started pulling her away, her mother wanted to save her but they
forcefully lifted her, one person gagged her mouth and took her to the
nearby Devi Mandir where they torn her clothes and there remained
no cloth on her body. It is further alleged in her statement under
Section 164 CrPC that the accused persons tied her mouth by gamcha
and two persons pressed her hand. One person was pressing her
mouth and by his second hand he was pressing her leg and thereafter
all the six persons took their turn one after another and committed
penetrative sexual act in her private parts. They continued to do it for
one hour. According to the victim, she was shouting but nobody could
hear her voice. Her father jumped out from the window and raised
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hulla whereafter on hearing hulla of the villagers, the accused persons
left her. Her mother and grandmother came to her and took her to her
house. After ten minutes, she was becoming unconscious then they
took her to a Doctor who gave her some medicines and she took
medicines for 5-6 days then she got strength to stand on her own. She
claimed that the accused persons had also beaten her by danda and
she had identified all the six accused because there was solar light and
she had seen the accused persons in the solar light. She has stated that
the accused persons had also lighted the torch while committing
wrong act with her and she could identify them. She has further stated
that all the accused persons were in underwear when they entered into
the house and were having motri (bundle) and when villagers raised
hulla, they left her and fled away with their motri.
5. It is evident from the statement of the daughter of the
informant recorded under Section 164 CrPC that she was taken to the
learned Magistrate to record her statement after twenty two days of
the occurrence and in her statement she has completely changed the
prosecution story.
6. After investigation, police while continuing with the
investigation submitted a charge-sheet against five accused persons
namely Rabinder Musahar, Kamta Musahar, Sanjay Musahar, Vinod
Musahar and Dilip Musahar of village Kormat vide Charge-sheet No.
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37 of 2013 dated 11.10.2013. Cognizance of the offences under
Sections 395 and 376 IPC as also under Sections 4/8 of the POCSO
Act was taken on 12.082014. Out of five accused persons, the records
of three accused, namely, Dilip Musahar, Bhushan Musahar and
Surendra Musahar were separated. Later on, due to absence of
accused Dilip Musahar and Kamta Musahar, the records were
separated. The bail bond of Sanjay Musahar and Vinod Musahar were
cancelled. In this manner, the only accused who remained to face trial
is this appellant, namely, Rabinder Musahar. He was explained the
charges under the above-mentioned sections of the IPC and POCSO
Act respectively which he denied and claimed to be tried.
Accordingly on 23.04.2015, the charges were framed under the
above-mentioned Sections in which cognizance was taken.
7. The defence completely denied the occurrence and
claimed that he was innocent.
8. In course of investigation, the prosecution examined as
many as nine witnesses and exhibited documentary evidences. The
complete description of the prosecution witnesses and the
documentary evidences exhibited on its behalf are provided hereunder
in a tabular form for ready reference:-
List of prosecution witnesses
PW-1 Victim (X)
PW-2 Father of the victim (Informant)
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PW-4 Lalita Devi
PW-5 Mukesh Kumar
PW-6 Suresh Mehta
PW-7 Adar Mahto
PW-8 Lakshminiya Devi
PW-9 Bhola PrasadList of Exhibits
Exhibit-1 The signature of the victim on her
statement under Section 164 Cr.P.C.
Exhibit-2 The signature of the informant on the
written application
Exhibit-3 & 3/1 Two medical reports of the victim
Exhibit-4 The endorsement on the written
application.
Exhibit-5 The Formal FIR of Tandwa P.S. Case
No.41 of 2013
Exhibit-6 The Charge-sheet of Tandwa P.S. Case
No.41 of 2013
Exhibit-7 The death report of I.O.
Exhibit-8 to 8/14 TIP chart
Findings of the learned Trial Court
9. The learned trial court went through the evidences
available on the record and took note of the submissions made on
behalf of the parties. The court first proceeded to examine as to
whether the victim in this case would come within the meaning of the
word ‘child’ as contained in Section 2(d) of the POCSO Act. The
court readily came to a conclusion that in this case, the charge has
been framed under Section 6 of the POCSO Act and if the defence has
not contested it then it will be presumed that this case would come
under the POCSO Act but in course of trial, if any evidence comes
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8/35with regard to the age of the victim then the decision would be taken
with regard to her age in the light of such evidence. The trial court has
noticed that the victim appeared before the learned Magistrate to
record her statement under Section 164 CrPC in which she declared
her age as thirteen years and in course of trial, she declared her age as
fifteen years but the defence could not contradict the victim on this
point. Thus, the court assumed that the victim is a minor and
proceeded to consider the case under POCSO Act.
10. The learned trial court has taken a view that the victim
(PW-1) has fully supported her case and on the point of rape her
evidences corroborate her statement under Section 164 CrPC. The
defence was not able to take any contradiction in her statement. There
is no contradiction with regard to the time, place and manner of
occurrence as stated in the evidence of PW-1. The learned trial court
has concluded that to prove the guilt, the evidence of the victim alone
was sufficient and for this reason, the onus to rebut the presumption
contained under Section 29 of the POCSO Act would shift upon the
defence.
11. It appears on perusal of paragraph ’22’ of the impugned
judgment that the learned trial court has recorded that PW-1 had
supported the prosecution case as per the written application which is
the basis of FIR and also supported her statement recorded after 8/9
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that in fact the statement under section 164 CrPC was recorded after
twenty two days of the occurrence and the learned trial court has
committed an error of record in recording that the victim had recorded
her statement after 8/9 days of the occurrence.
12. The learned trial court has recorded that nobody had
seen the occurrence of rape, the victim (X) is the solitary eyewitness
and PW-2 (the informant) and PW-4, who is grandmother of the
victim, both had gone towards the temple but by that time on hearing
hulla, the accused persons had fled away. All the witnesses had seen
the victim (X) in naked condition.
13. It was one of the submissions of the defence that the
medical evidence does not support the prosecution case of
commission of penetrative sexual act upon the victim. It was
submitted that in case of a gang rape, there would be injury on the
body of the victim particularly on fourchette and vagina. The court
noticed that the occurrence took place on 07.08.2013 whereas the
medical examination of the victim took place on 22.08.2013 in the
Sadar Hospital, Aurangabad. The trial court records that because of
the prestige issue, father of the victim had not mentioned about the
occurrence of rape in the FIR. When the I.O. arrested the accused
persons and recorded their confessional statement then the I.O. came
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suppressing this because of prestige issue. He mentioned it in the case
diary. The learned trial court recorded that he was aware of the fact
that the case diary cannot be read as evidence in accordance with law
but in view of the provisions contained under Section 32(2) of the
Indian Evidence Act, 1872, if the Investigating Officer (‘I.O.’) dies or
his deposition is impossible then the work done by him in ordinary
course of discharge of his duties may be taken into consideration by
way of evidence by the court. The learned trial court has, therefore,
taken a view that the part of the paragraph ’94’ of the case diary in
which the factum of rape upon the victim (X) has been admitted by
her family members on 22.08.2013 would form part of evidence.
14. The learned trial court thereafter examined the evidence
of the Doctor (PW-3) who has recorded that there was no external
injury on the body of the victim. The trial court thereafter proceeded
to record that in this connection PW-1 and PW-5 both have given
evidence. PW-5, who is brother of PW-1, had taken her for treatment
elsewhere, therefore the trial court concludes that for this reason, the
victim was not taken to lodge the FIR and due to her treatment for
fifteen days, the injuries caused on her external part of the
body/private parts had healed up naturally. The trial court, therefore,
rejected the plea of the defence that in the medical examination
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prosecution would fail to establish its case. The trial court noticed that
PW-3 has recorded in paragraph ‘3’ of his deposition that hymen was
ruptured. In paragraph ‘9’, he has stated that she had recent sexual act
and the victim was habituated to sex. The trial court took a view that
if six persons would commit forceful rape on the victim, the medical
report would show that she was habituated to sex. The trial court,
therefore, came to a conclusion that the defence had failed to impeach
the credibility of the victim (PW-1). The evidence of PW-2 may not
be wholly reliable but his evidence would be partially reliable in
which he has stated about the dacoity and rape. His deposition to the
extent he says that even before the TIP he had identified the accused
persons in the police station would not be admissible in evidence. On
this point, the plea of the defence has been accepted by the learned
trial court. It has been recorded that there are some contradictions in
paragraph ‘4’ of the deposition of PW-2 but that would not be
significant.
15. The trial court agreed with the plea of the defence that
the learned Magistrate who had conducted the TIP in jail was required
to be examined in course of trial but only because he has not been
examined, it cannot be taken as a reason for not deciding the present
case. PW-1 and PW-5 had not gone to the police station with the
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12/35informant, both of them for the first time went to jail where the
present appellant was identified and the defence has not put any
question to the victim on this point. The learned court relied upon the
carbon copy of the TIP chart (Exhibit ‘8’ to ‘8/14’) even as the same
has not been proved by the author of the document. In this regard, the
plea of the defence that Exhibit ‘8’ to ‘8/14’ would not be admissible
in evidence has been rejected by the learned trial court. These exhibits
were marked on 31.03.2021 by the learned trial court on the basis of
an application filed by the Public Prosecutor to mark the TIP
documents exhibits.
Submissions on behalf of the appellant
16. Learned counsel for the appellant submits that initially
the FIR being Tandwa P.S. Case No. 41 of 2013 was registered by the
informant for the offence under Section 395 IPC on 08.08.2013 for
the occurrence of dacoity said to be committed on 07.08.2013 at
about 11:00 PM in his house by four unknown persons. There was no
allegation of commission of rape with daughter of the informant
under Sections 376(D) IPC as well as Section 6 of the POCSO Act in
the FIR rather the allegation constituting the offences under Section
376(D) IPC and Section 6 of the POCSO Act were brought after the
statement of informant’s minor daughter was recorded under Section
164 CrPC on 29.08.2013 i.e. after lapse of 21 days from the date on
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which the written report of the informant was submitted and the FIR
was instituted.
17. It is further submitted that in this case, the I.O. has not
been examined as according to the prosecution, the I.O. died and no
other official witness came to depose as to what transpired in course
of investigation. It is submitted that there are two places of
occurrence in this case, first is the house of the informant and the
second is near the Devi Asthan but neither any map of the place of
occurrence nor any oral evidence has been laid to show that in course
of investigation, the I.O. had verified the place of occurrence and had
found the prosecution case true with regard to the place of
occurrence.
18. Learned counsel submits that the evidence of the victim
(X) who has been examined as PW-1 is not wholly reliable as she is
not speaking the truth and has been planted by the I.O. after fifteen
days of the occurrence. Submission is that the learned trial court has
itself recorded in the impugned judgment that when the I.O., namely,
Ajay Kumar arrested the accused persons and recorded their
confessional statement then he came to know that dacoits had also
committed rape but the victim and her family members were
suppressing it in order to save their prestige.
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19. Learned counsel submits that the confessional statement
of the accused is not an admissible piece of evidence and there is no
evidence on the record for the trial court to take a view that the victim
and her family members had been suppressing this occurrence of
rape.
Submissions on behalf of the State
20. On the other hand, learned Additional Public Prosecutor
for the State has defended the impugned judgment and order of the
learned trial court. It is submitted that the victim (X) has fully
supported the case of the prosecution and stated that due to social
fear, her father concealed the matter of rape but in her statement under
Section 164 CrPC the victim narrated about the incident. The victim
had identified the accused in jail at the time of TIP.
Consideration
21. Having heard learned counsel for the appellant and
learned Additional Public Prosecution for the State as also on perusal
of the trial court’s records, this Court finds that in this case, initially
the informant (PW-2) who is father of the victim girl submitted a
written application on 08.08.2013 in which he described the
occurrence which took place in his house at about 11:00 PM on
07.08.2013. The FIR was registered on the basis of the application of
PW-2, under Section 395 IPC. It is the case of the informant in his
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written application that all the family members were locked inside a
pakka room of the house and the miscreants locked the door from
outside. According to the informant, PW-4 there were four persons
who had cross over the boundary wall and entered into the house,
however, towards the end of his application, he has stated that there
were total six numbers of miscreants who were in between the age of
25-30 years. Thus, in his application itself at one place the informant
has stated that four persons had entered into his house but later on he
has stated that there were six persons. The informant (PW-2) does not
claim to have identified the miscreants/criminals. No source of
identification has been disclosed in the written application. There is
no whisper of allegation that the accused persons had forcibly taken
away the victim girl and they had committed rape on her near Devi
Sthan for about one hour. The FIR was registered on the next day of
the occurrence at 09:00 AM whereas the distance of the village from
the police station is only three kilometers.
22. It has come in the trial court’s judgment that in course
of investigation it was the I.O. (not examined because of his death)
who sensed from the confessional statement of the accused that the
accused had also committed rape on the daughter of the informant.
This was noticed by the I.O. on 22.08.2013 which was after about 15
days of the occurrence. It is, therefore, evident that for 15 days,
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neither the victim nor any member of the family of the informant
made any statement before police that there was any occurrence of
rape in the night of the occurrence.
23. Adar Mahto (PW-7) is the father of the informant who
has stated in his cross-examination that on the date of occurrence, he
was sleeping in his house and had bolted his door. He has further
stated that dacoits had locked all of them in the house. He had not
gone to the police station but this witness has stated that in paragraph
‘5’ of his deposition that his son, daughter-in-law and the grand
daughter had gone to the police station. It is, therefore, evident that
the daughter of the informant had also gone to the police station but
she had not disclosed that the accused persons had committed rape on
her. In paragraph ‘6’ of his deposition PW-7 has further stated that
when darogaji caught hold of the dacoit then his son, daughter-in-law
and his grand daughter were called on to the police station after three-
four days of the occurrence for identification.
24. The evidence of PW-7 would create suspicion over the
evidence of the victim (PW-1) who has been cross-examined by the
defence and in course of her cross-examination when she was
suggested by the defence that she had seen the accused persons in the
police station, she denied the same. In paragraph ‘4’ of her deposition,
PW-1 has made a misleading statement that her statement was
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recorded after 8-9 days of the occurrence. She has stated that her
statement was recorded by police after fifteen days of recording of her
statement before the Magistrate. She had gone with her father to
record statement in the court. At her instance, her statement under
Section 164 CrPC has been marked Exhibit ‘1’. The learned
Magistrate who recorded her statement has not been examined in
course of trial.
25. On perusal of the evidence of PW-4 who is the mother
of the victim, it would appear that this witness has not stated in her
examination-in-chief that her daughter was taken away near the Devi
Asthan and the accused persons committed rape on her there. What is
surprising from the evidence of PW-4 is that she claims to have
identified the dacoits in solar light. She has stated that she did not
know but other mushars had told her their names. From the statement
of PW-4 two things are appearing, firstly that she did not know the
dacoits and their names were told to her by other mushars. Who were
those other mushars is not known and how they could tell PW-4 the
names of dacoits is also not known, the another thing which is evident
is that if PW-4 had identified the dacoits by their names and she had
seen them in solar light then her natural conduct would have been to
disclose those names to her husband and to the I.O. and the names
could have been mentioned in the written application submitted by
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her husband but the written application did not mention any name,
therefore, this Court is of the opinion that the claim of PW-4 that she
identified the dacoits is completely unfounded.
26. In this case, the I.O. has not been examined as
according to the prosecution the I.O. died and no other official
witness came to depose as to what transpired in course of
investigation. There is nothing on the record to show that the I.O. had
visited the place of occurrence. In this case, there are two places of
occurrence first is the house of the informant and the second is near
the Devi Asthan but neither any map of the place of occurrence nor
any oral evidence has been led to show that in course of investigation,
the I.O. had verified the place of occurrence and had found the
prosecution case true with regard to the place of occurrence.
27. The learned trial court proceeded to accept the
prosecution case taking the evidence of the victim (X) who has been
examined as PW-1 sacrosanct and a wholly reliable piece of evidence
but this Court is of the considered opinion that that evidence of PW-1
is wholly unreliable. She is not speaking the truth and has been
planted by the I.O. after 15 days of the occurrence. The learned trial
court has itself recorded in the impugned judgment that when the I.O.
namely Ajay Kumar arrested the accused persons and recorded their
confessional statement then he came to know that dacoits had also
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committed rape but the victim and her family members were
suppressing it in order to save their prestige. This, in the opinion of
this Court, is a gross error in appreciation of the evidence available on
the record. The confessional statement of the accused is not an
admissible piece of evidence and there is no evidence on the record
for the trial court to take a view that the victim and her family
members had been suppressing this occurrence of rape.
28. Further, this Court finds that the learned trial court has
proceeded to admit paragraph ’94’ of the case diary as an admissible
piece of evidence under Section 32(2) of the Indian Evidence Act
because the I.O. in this case had died and his evidence could not have
been recorded. In this paragraph ’94’ of the case diary, the I.O. had
recorded that the fact that the wrong act was committed upon the
victim (X) has been admitted by her and her family members on
22.08.2013. When the victim and her family members came to
depose, they did not claim to have made this statement to the I.O. on
22.08.2013. The learned trial court, in the opinion of this Court, has
failed to appreciate that the writings in the case diary cannot be taken
as a piece of evidence. There is no statement of PW-1 in her
deposition that she had not disclosed the occurrence of rape because
she was afraid of her prestige. Similarly, her father who has been
examined as PW-2 has nowhere stated that he did not disclose this
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occurrence to police because of any prestige issue. Thus, the
observation of the learned trial court seems to be completely
unfounded and has no basis to stand.
29. In the case of State of Punjab vs Jagir Singh & Ors.
reported in (1974) 3 SCC 277, the Hon’ble Supreme Court has been
pleased to observed inter alia that “a criminal trial is not like a fairy
tale wherein one is free to give flight to one’s imagination and
phantasy. It concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime with which he is
charged. Crime is an event in real life and is the product of interplay
of different human emotions. In arriving at the conclusion about the
guilt of the accused charged with the commission of a crime, the court
has to judge the evidence by the yardstick of probabilities, its intrinsic
worth and the animus of witnesses.”
30. To this Court, it is evident that the victim of this case
has been tutored after about fifteen days of the occurrence, a story
was developed by the I.O. of the case that he came to know about
commission of rape through the confessional statements of the
accused and then the victim and her family members admitted the
said occurrence. Seven days thereafter, the victim was taken to the
court of a learned magistrate where her statement under Section 164
CrPC was recorded and for the first time, she has come out with a
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wholly different prosecution story, incorporated the occurrence of
rape near Devi Sthan for one hour and then the fact that the accused
persons fled away after the villagers raised hulla. According to her the
accused person fled away with the ‘motri’ which which they had
entered into the house, what happened to the boxes and other articles
which they had looted in the dacoity from the house of the informant
remained unanswered. There was no seizure of the boxes and other
articles of the house of the informant near the place where the
accused persons had gone with the boxes, articles and the victim girl
and had committed rape on her. No independent witness from the
village has come to depose that he had gone near Devi Sthan and had
either seen the accused persons fleeing away or the victim PW-1 in
naked condition. In her 164 CrPC statement, the victim has stated that
on hearing hulla of the villagers, the accused persons fled away and
thereafter her mother and grandmother came and took her to her
house. Thus, it is evident that her father and brother had not come
near Devi Sthan. No other person from the village had come there.
31. The learned trial court has recorded that one Suresh
Mehta (PW-6) is an independent witness from the village. On bare
perusal of his examination-in-chief, it would appear that he is the
gotiya of the informant. He has stated that seven years ago at 11.00
PM dacoity had taken place in the house of Ramashish Mehta and
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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dacoits had committed rape on his daughter. He has stated in
paragraph ‘2’ that later on he came to know the name of the dacoits.
In paragraph ‘3’, he has stated that he does not identify the accused
persons. In his cross-examination, this witness has stated that his
statement was recorded by the police on the next day of the
occurrence but in his statement he had not stated the name of the
accused persons because he did not know the names. He came to
know the names of the accused after one week through newspaper. In
paragraph ‘5’ of the deposition, he has stated that the photographs
were published in the newspaper and he had read the newspaper after
fifteen days from which he came to know. From the evidence of PW-
6, it is crystal clear that he is not an eye witness of this occurrence. He
has not stated that the dacoits had forcibly lifted away the daughter of
the informant and had committed rape on her near Devi Asthan. It is
also clear that he does not claim to have heard hulla or have visited
the place near Devi Asthan in the night of the occurrence.
32. The learned trial court has also failed to appreciate the
evidence of PW-6 that the photographs of the accused persons were
published in the newspaper and he had come to know about them
from the newspaper. This evidence is to be seen together with the
evidence of PW-7 who has stated that his son, daughter-in-law and the
grand-daughter (victim) were called to the police station after the
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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dacoits were caught and they were called after 3-4 days for
identification. It is evident from the evidence of this witness that the
police had got identified the accused persons in the police station only
after 3-4 days of the occurrence and the photographs of those persons
were published in the newspaper.
33. The learned trial court while relying upon the TIP chart
(Exhibit-8 to 8/14) could not appreciate that the carbon copy of the
TIP chart was not proved through any witness by the prosecution.
Those were marked exhibits on mere application filed by the Public
Prosecutor and the order passed by the learned trial court on
31.03.2021 would show that those were marked exhibits on mere
asking by the Public Prosecutor. Admittedly the Magistrate, who
conducted the TIP, has not been examined in course of trial. The
learned trial court could not appreciate that the TIP had lost its
significance when the accused persons had already been shown to
PW-1, PW-2 and PW-4 in the police station immediately after their
arrest and then their photographs had already been published in the
newspaper.
34. This Court finds from the materials discussed
hereinabove that the victim (PW-1) whose testimony has been relied
upon by the learned trial court cannot be put in the category of a
sterling witness. In the case of Rai Sandeep Alias Deepu Vs. State
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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(NCT of Delhi) reported in (2012) 8 SCC 21, the Hon’ble Supreme
Court has discussed the characteristics of a sterling witness.
Paragraph ’22’ of the judgment in the case of Rai Sandeep Alias
Deepu (supra) is quoted hereunder for a ready reference :-
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 the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with* [Ed.: Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-
2012.]
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
25/35the 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.”
35. In the light of the above views of the Hon’ble Supreme
Court expressed in the case of Rai Sandeep Alias Deepu (supra)
when we examine the evidence of PW-4, we find that she has come to
make statement with regard to the occurrence of her rape at a much
belated stage, she seems to have been tutored. The medical
examination report which has been marked Exhibit-3 and 3/1 at the
instance of Dr. Vikash Kumar (PW-3) shows that she was found aged
between 17-18 years on the basis of physical, mental detention and
radiological report. The doctor had conducted pelvic examination,
found the hymen ruptured but no local injury and tenderness on valva,
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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perineum, medial side of thigh and locally, no abnormal discharge
seen, intriotus admits two fingers easily and vaginal swab was taken
to send for histopathological examination. The supplementary report
has also been proved by PW-3 on the basis of X-ray reports and
regarding sexual act the doctor opined that “on the basis of findings
described above, she seems to have undergone sexual act and
habituated to sex.” Both the medical reports have been exhibited and
marked as Exhibit-3 and 3/1 respectively. In his cross-examination,
PW-3 has stated that he cannot say how many days before the
occurrence sex would be taken as habituated sex. PW-3 opined that
there was no sign of injury on the private part of the victim.
According to the report, the victim had recent sexual act. The medical
report also mentions that she had her last menstruation period on
06.08.2013 as per statement, she had washed her clothes (private
parts) and changed her clothes after incidence. No injury report of any
other doctor has been brought on record to prove that the victim (PW-
1) had suffered an injury because of gang rape and had received
treatment for the same. The learned trial court seems to have assumed
upon itself some facts without any evidence to prove the same.
36. From the report of the medical board and the evidence
of doctor (PW-3), it is evident that the victim was found aged between
17-18 years and she was habituated to sex. The victim was claiming
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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her age as 13 years at the time of occurrence, she disclosed that she
was studying in a school but the prosecution did not bring her school
admission register to prove her date of birth. The learned trial court
ignored the fact that as per the radiological report the victim was aged
about 17-18 years, therefore, if there was no other evidence of age in
terms of Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015, the age of the victim (PW-1) had to be
ascertained keeping in view the medical examination report as to her
age and the law in this regard on the subject. The learned trial court
proceeded to accept that the victim is a child within the meaning of
Section 2(d) of the POCSO Act because the defence had not cross-
examined her with regard to her age which would not be the correct
way to approach a case. The prosecution must stand on it’s own leg is
a well settled principle of appreciation of evidences in criminal trials.
37. In the case of Ram Vijay Singh Vs. State of Uttar
Pradesh reported in (2021) 15 SCC 241, the Hon’ble Supreme Court
was considering a plea of the appellant that he was a juvenile on the
date of incident. The radiologist had assessed the age of the appellant
at the time of occurrence in between 15½ -17½ years. Earlier the
High Court had sought a report of the medical board consisting of
five doctors who had opined that the age of the appellant is between
40-55 years. The High Court submitted a report to the Hon’ble
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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Supreme Court that the appellant was juvenile on the date of
commission of the offence. The Hon’ble Supreme Court reviewed the
case-laws on the subject and observed in paragraph ’14’ as under:-
“14. We find that the procedure prescribed in Rule 12 is
not materially different than the provisions of Section 94
of the Act to determine the age of the person. There are
minor variations as Rules 12(3)(a)(i) and (ii) have been
clubbed together with slight change in the language.
Section 94 of the Act does not contain the provisions
regarding benefit of margin of age to be given to the child
or juvenile as was provided in Rule 12(3)(b) of the Rules.
The importance of ossification test has not undergone
change with the enactment of Section 94 of the Act. The
reliability of the ossification test remains vulnerable as
was under Rule 12 of the Rules.”
38. In the case of Court on its own motion Vs. State of
NCT of Delhi reported in 2024 SCC Online Del 4484, the Hon’ble
Delhi High Court was hearing the reference under Section 395(2) of
Cr.P.C. The following questions of law were referred for decision of
the High Court:-
“(i) Whether in POCSO cases, the Court is required to
consider the lower side of the age estimation report, or
the upper side of the age estimation report of a victim
in cases where the age of the victim is proved through
bone age ossification test?
(ii) Whether the principle of ‘margin of error’ is to be
applicable or not in cases under the POCSO Act where
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
29/35the age of a victim is to be proved through bone age
ossification test.”.
39. While considering the above questions, the Hon’ble
High Court took note of it’s coordinate Bench judgment in the case of
State Vs. Basir Ahamd reported in 2023 SCC Online Del 5852 and
further relied upon the judgment of the Hon’ble Supreme Court in the
case of Rajak Mohammad Vs. State of Himachal Pradesh reported
in 2018 SCC Online SC 1222. In paragraph ’38’ and ’39’ of the
judgment of the Hon’ble Delhi High Court in the case of Court on its
own motion (supra) are being reproduced hereunder:-
“38. In the case of State v. Basir Ahmad6, a Coordinate
Bench of this Court presided over by one of us, (Suresh
Kumar Kait, J.) was faced with the similar issue. The
accused, who was facing trial for committing sexual
assault, was acquitted by learned Trial Court observing
that the age of the prosecutrix was shown to be between
17 to 19 years and, therefore, there was no conclusive
evidence of her being a minor at the time of alleged
offence. Consequently, the benefit was extended to the
accused who was acquitted. Such order was assailed
before this Court and the appeal was dismissed. This
Court not only upheld the factum of consideration of the
age on the upper side of ossification report while
assessing the age of the prosecutrix but also approved
the principle of giving further margin of two years to
such upper estimated age. The pertinent excerpt from the
aforementioned judgment is as under:
6. 2023 SCC OnLine Del 5852
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
30/35“12. The question which thus arises is whether the
lower or the upper age recommended in the ossification
test should be adopted to be the age of the prosecutrix. If
benefit of doubt has to be given to the accused under all
circumstances, then, it is the higher limit which has to be
taken and benefit extended as has been held in the cases
of Triveniben v. State of Gujarat (1989) 1 SCC 678 and
Maru Ram v. Union of India (1981) 1 SCC 107. So
being the case, we may consider the range of age of the
prosecutrix as given in the ossification test to be 17 to 19
years. Applying the margin of error principle of two
years on either side, the age of the prosecutrix could be
anything between 15 to 21 years. Even if the margin of
error is not on the higher side, the upper limit of the age
has been estimated by the ossification test as 19 years.
Giving the benefit, the age of the prosecutrix has to be
held as 19 years. Similar conclusion was taken by the
Court in the case of Shweta Gulati v. State of NCT of
Delhi 2018 SCC OnLine Del 10448. We thus find that
learned ASJ has rightly held the prosecutrix to be major
at the time of incident. We find no infirmity in the
findings in respect of the age of the prosecutrix.”
39. In context of said all important aspect of ‘granting of
benefit of doubt to accused at every stage’, we may also refer
to Rajak Mohammad v. State of Himachal Pradesh7 whereby
the Hon’ble Supreme Court allowed the appeal of the convict
who was facing charges of kidnapping and sexual assault and
acquitted him while observing as under:–
“4. In view of the above, the focal point for decision
would be the age of the prosecutrix in order to determine as
to whether she was a major so as to give her consent.
7. (2018) 9 SCC 248
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5. In this regard, we have considered the evidence and
materials on record. The age of the prosecutrix has been
sought to be proved by the prosecution by bringing on
record the school admission form (Ext. PW 5/A) and the
certificate (Ext. PW 5/B) issued by one Jasdeep Kaur
(PW 5), JBT Teacher of Government School Dungi
Plate. PW 5 in her deposition has stated that the writings
in the school admission form (Ext. PW 5/A) are in her
handwriting and the signature affixed is that of the
mother of the prosecutrix.
6. In cross-examination, PW 5 had stated that the
details mentioned in Ext. PW 5/A have been obtained
from the school leaving certificate issued by the
Government Primary School, Tambol. The certificate
issued by the Government Primary School, Tambol on
the basis of which the details in the admission form (Ext.
PW 5/A) was filled up by PW 5 has not been exhibited
by the prosecution.
7. Nothing hinges on the document exhibited by the
prosecution as Ext. PW 5/B as that is the consequential
certificate issued on the basis of the entries in Ext. PW
5/A. The mother of the prosecutrix who had allegedly
signed Ext. PW 5/A has not been examined by the
prosecution.
8. On the other hand, we have on record the evidence
of Dr Neelam Gupta (PW 8), a Radiologist working in
the Civil Hospital, Nalagarh who had given an opinion
that the age of the prosecutrix was between 17 to 18
years.
9. While it is correct that the age determined on the
basis of a radiological examination may not be an
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
32/35accurate determination and sufficient margin either way
has to be allowed, yet the totality of the facts stated
above read with the report of the radiological
examination leaves room for ample doubt with regard to
the correct age of the prosecutrix. The benefit of the
aforesaid doubt, naturally, must go in favour of the
accused.
10. We will, therefore, have to hold that in the present
case the prosecution has not succeeded in proving that
the prosecutrix was a minor on the date of the alleged
occurrence. If that is so, based on the evidence on
record, already referred to, we will further have to hold
that the possibility of the prosecutrix being a consenting
party cannot be altogether ruled out.
11. We will, therefore, have to conclude that the
appellant-accused deserves to be acquitted on the benefit
of doubt. We, consequently, set aside the order of the
High Court and the conviction recorded as well as the
sentence imposed and acquit the appellant-accused of the
offences alleged. We further direct that the appellant-
accused be released from custody forthwith unless his
custody is required in connection with any other case.
(emphasis supplied)”
40. In paragraph ’46’ of its judgment, the Hon’ble Delhi
High Court summarized the discussions and the answer to the
reference in the following terms:-
“46. As an upshot of our foregoing discussion, the
Reference is answered as under:–
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(i) Whether in POCSO cases, the Court is required
to consider the lower side of the age estimation report,
or the upper side of the age estimation report of a victim
in cases where the age of the victim is proved through
bone age ossification test?
Ans : In such cases of sexual assault, wherever, the
court is called upon to determine the age of victim based
on ‘bone age ossification report’, the upper age given in
‘reference range’ be considered as age of the victim.
(ii) Whether the principle of ‘margin of error’ is to
be applicable or not in cases under the POCSO Act
where the age of a victim is to be proved through bone
age ossification test.
Ans : Yes. The margin of error of two years is
further required to be applied.”
41. It is evident from the judgment of the Hon’ble Delhi
High Court that in cases of sexual assault wherever the court is called
upon to determine the age of victim based on ‘bone age ossification
report’, the upper age given in ‘reference range’ be considered as age
of the victim. In our opinion, the same principle is required to be
followed in the present case and the upper age of PW-1 given in the
opinion of the medical board being 18 years, the victim (PW-1) would
not be covered within the meaning of the definition of the word
‘child’ under Section 2(d) of the POCSO Act.
Patna High Court CR. APP (DB) No.694 of 2021 dt.16-01-2025
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42. In our opinion, the learned trial court has completely
erred in recording that this case would be covered under the
provisions of the POCSO Act.
43. We find that in this case the written application was
submitted giving rise to the present FIR after about 10 hours of the
occurrence, still there was no information with regard to the names of
the accused and their identification and there was no whisper of the
occurrence of rape and further this FIR was sent to the court of
learned Chief Judicial Magistrate after four days. The I.O. was not
available for deposition in this case, therefore, the defence was
completely deprived of an opportunity to examine the I.O. on the
question of delay in sending the FIR to the jurisdictional court.
44. The victim (PW-1) is not a sterling witness in this case
and the identification of the accused said to have been done in a TIP
conducted in jail is highly suspicious.
45. Thus, in our opinion, the judgment and order of the
learned trial court is liable to be set aside. We are of the opinion that
the prosecution has miserably failed to prove this case on all aspects
of the matter such as place of occurrence, time of occurrence and
manner of occurrence and it would not be safe to sustain the
conviction of the appellant in the kind of evidences available on the
record.
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46. This is a case of no evidence.
47. We, accordingly, set aside the impugned judgment and
order of the learned trial court. The appellant is in jail, hence he shall
be released forthwith if not wanted in any other case.
48. A copy of this judgment together with the trial court
records be sent back to the learned trial court.
49. This appeal is allowed.
(Rajeev Ranjan Prasad, J)
(Ramesh Chand Malviya, J)
arvind/Rishi-
AFR/NAFR CAV DATE Uploading Date 29.01.2025 Transmission Date 29.01.2025