Patna High Court
Abdul Rahim Ansari vs The State Of Bihar on 7 August, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ajit Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.12 of 2023
Arising Out of PS. Case No.-292 Year-2019 Thana- BETTIAH CITY District- West
Champaran
======================================================
Sartaj Alam @ Md. Sartaj Alam, s/o Manjoor Alam @ Manjur Mian, R/v-
Gulab Chowk, Pat Khauli, P.S.- Bairiya, District- West Champaran.
... ... Appellant
Versus
1. The State of Bihar
2. Hazrat Ali S/o- Late Madim Mian, R/v- Gulab Chowk, Pat Khauli, P.S.-
Bairiya, District- West Champaran
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 937 of 2022
Arising Out of PS. Case No.-292 Year-2019 Thana- BETTIAH CITY District- West
Champaran
======================================================
Abdul Rahim Ansari, Son of Late. Aslam Mian @ Aslam Ansari, R/V- Ram
Nagar, P.S.- Ram Nagar, Dist- West Champaran. ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 12 of 2023)
For the Appellant : Mr. Rajendra Narain, Sr. Advocate
Mr. Akhileshwar Kumar Shrivastva, Advocate
Ms. Akanksha Malviya, Amicus Curiae
For the State : Mr. Abhimanyu Sharma, Addl.PP
For the Resp No. 2 : Mr. Krishna Kant Pandey, Advocate
(In CRIMINAL APPEAL (DB) No. 937 of 2022)
For the Appellant : Mr. Rajendra Narain, Sr. Advocate
Mr. Akhileshwar Kumar Shrivastva, Advocate
Mr. Sriram Krishna, Amicus Curiae
For the State : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE AJIT KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 07-08-2025
Heard Mr. Rajendra Narain, learned Senior Counsel
assisted by Mr. Akhileshwar Kumar, learned counsel for the
appellants, Ms. Akanksha Malviya, learned Amicus Curiae (in Cr.
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
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Appeal (DB) No. 12 of 2023) and Mr. Sriram Krishna, learned
Amicus Curiae (in Cr. Appeal (DB) No. 937 of 2022) and Mr.
Abhimanyu Sharma, learned Additional Public Prosecutor for the
State as also Mr. Krishna Kant Pandey, learned counsel for the
respondent no. 2 in Cr. Appeal (DB) No. 12 of 2023.
2. These two appeals are arising out of judgment of
conviction dated 21.10.2022 (hereinafter referred to as the
'impugned judgment') and the order of sentence dated 01.11.2022
(hereinafter referred to as the 'impugned order') passed by learned
A.D.J. VI-cum-Special Judge, POCSO, Bettiah, West Champaran
(hereinafter referred to as the 'learned trial court') in S.G.R. No. 55
of 2019 (C.I.S. POCSO - 57 of 2019) arising out of Bettiah Town
P.S. Case No. 292 of 2019.
3. By the impugned judgment, the learned trial court has
been pleased to convict the appellant, namely, Sartaj Alam for the
offences punishable under Sections 342, 366, 366A, 363, 376(3) of
the Indian Penal Code (in short 'IPC') and under Section 6/5(1) of
the Protection of Children from Sexual Offences Act (In short
'POCSO Act') whereas the appellant, namely Abdul Rahim Ansari
has been convicted for the offences punishable under Sections
366A, 366 and 363/34 IPC.
4. By the impugned order, the appellants, namely, Sartaj
Alam has been directed to undergo rigorous imprisonment for
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twenty (20) years with a fine of Rs.2,00,000/- u/s 376(3) IPC and
imprisonment for life u/s 6 of the POCSO Act with a fine of
Rs.1,00,000/-. He would have to serve either of the punishments
awarded u/s 376(3) IPC and Section 6 of the POCSO Act in
compliance of Section 42 of the POCSO Act. In default of payment
of fine, he has to further undergo rigorous imprisonment for six
months. He has also been ordered to undergo rigorous
imprisonment for ten (10) years with a fine of Rs.25,000/- under
Sections 366 and 366A IPC and in default of payment of fine, he
has to further undergo rigorous imprisonment for three months. He
has further been sentenced rigorous imprisonment for seven years
with a fine of Rs.20,000/- under Section 363 IPC and in default of
payment of fine, he shall further undergo rigorous imprisonment for
two months. He has further been sentenced rigorous imprisonment
for one year under Section 342 IPC.
The appellant, namely, Abdul Rahim Ansari has been ordered
to undergo rigorous imprisonment for ten (10) years with a fine of
Rs. 1,00,000/- under Sections 366 and 366A IPC and in default of
payment of fine, he has to further undergo rigorous imprisonment
for six months. He has also been ordered to undergo rigorous
imprisonment for seven (7) years with a fine of Rs.20,000/- under
Section 363 IPC and in default of payment of fine, he has to further
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undergo rigorous imprisonment for two months. All the sentences,
except in default of payment of fine, are to run concurrently.
Prosecution Case
5. The prosecution case is based on the written
application (Exhibit '4') of the informant (PW-7). In his written
application, PW-7 has stated that his daughter was at his Nana's
place for last 20 days. On 30.03.2019 at 06:30 in the morning, he
got telephonic information from his Sasural people that his
daughter is missing. The informant reached there and when
everybody started searching for her, they got information that Sartaj
Alam had kidnapped her daughter with wrong intention. The
informant alleged that (1) Sartaj Alam, (2) Manjur Mian, (3) Jafar
Alam and (4) Arman Mian all collectively under conspiracy
kidnapped his daughter with an intention to got her married.
6. On the basis of this written application, Bettiah Town
P.S. Case No. 292 of 2019 dated 13.04.2019 was registered, under
Sections 366(A)/120(B) IPC and later on, Section 8 of the POCSO
Act was also added, against four accused, namely, (1) Sartaj Alam,
(2) Manjur Mian, (3) Jafar Alam and (4) Arman Mian.
7. After investigation, Police submitted chargesheet being
Chargesheet No. 915 of 2019 dated 20.09.2019 under Sections 363,
366(A)/34 IPC and Section 8 of the POCSO Act against (1) Sartaj
Alam, (2) Manjur Mian and (3) Abdul Rahim Ansari (not named in
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the FIR) whereas Jafar Alam and Arman Mian were not sent up for
trial and name and address of accused Govind was shown not
certified. Learned trial court vide order dated 29.11.2019 took
cognizance of the offences under above-mentioned Sections.
8. Charges were read over and explained to the appellants
in Hindi to which they pleaded not guilty and claimed to be tried,
accordingly, vide order dated 20.01.2021, charges were framed
under Sections 366(A), 366, 363, 342, 376(DA) IPC and Section 6,
19 read with 21, 17 read with 6 of the POCSO Act.
9. In course of trial, the prosecution has examined
altogether eleven witnesses and exhibited several documentary
evidences. The description of prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Lalan Ram
PW-2 Maternal Grandfather of
the victim
PW-3 Ranjan Singh
PW-4 Veena Devi
PW-5 Mother of the Victim
PW-6 Victim
PW-7 Father of the Victim
(Informant)
PW-8 Bihari Singh
PW-9 Dr. Manju Jaiswal
PW-10 Amit Kumar Singh
PW-11 Naveen Kumar Shukla
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List of Exhibits on behalf of the Prosecution
Exhibit '1' Signature of the Victim over her statement
u/s 161 CrPC
Exhibit '2' Transfer Certificate of the Victim
Exhibit '3' Statement of the Victim u/s 164 CrPC
Exhibit '3/a' Signature of the Victim over her statement
u/s 164 CrPC
Exhibit '4' Written application
Exhibit '4/a' Endorsement of Sriram Singh, SHO of
Bettiah Town on the written application
Exhibit '5' Medical Report of the Victim
Exhibit '6' Signature of Sriram Singh, SHO over the
written application
Exhibit '7' Admission Register
10. Thereafter, the statement of the appellants were
recorded under Section 313 of the Code of Criminal Procedure (in
short 'CrPC'). The appellants took plea that they are innocent.
11. The defence has examined two witnesses to prove
their innocence. An agreement paper dated 08.01.2003 has been
marked as Exhibit 'D-1'. The description of defence witnesses are
given hereinbelow in tabular form:-
List of Defence Witnesses
DW-1 Samshul Mian
DW-2 Neyaz Ahmad
Findings of the Learned Trial Court
12. The learned trial court has, upon consideration of the
evidences available on the record, found at the first instance that
the prosecutrix in this case is not a wholly reliable witness. There
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is nothing on the record to corroborate the testimony of the
prosecutrix with respect to involvement of other accused persons
except accused Sartaj and Rahim. The learned trial court has held
that the prosecutrix's statement during trial and during the first
statement under Section 161 CrPC and 164 CrPC are not identical
but having said so, the learned trial court has recorded it's opinion
that the statement of the prosecutrix is not fully unreliable and the
Court has to find out the grains from the chaffs.
13. The learned trial court has held that the Prosecutrix
is a minor aged below 18 years. The basis for such an opinion of
the trial court is the school leaving certificate (Exhibit '2')
produced by the prosecution in course of trial. The date of birth
mentioned in the school leaving certificate being 02.04.2006, the
learned trial court has held that the prosecutrix was aged about 12
years, 11 months and 28 days on the date of occurrence i.e.
30.03.2019
. The submission of the defence that the school leaving
certificate is a fabricated one and is not a proof of age and further
submission that in the ossification test held by the Doctor (PW-9),
the age of the victim has been assessed between 17-19 years so she
should be held major, has been rejected by the learned trial court.
14. After holding that the prosecutrix was aged below 18
years, the learned trial court held that from the testimony of the
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prosecution witnesses, the guilt of the appellants stands proved
beyond all reasonable doubts. Out of five accused, who faced trial
in this case, three were acquitted holding that the prosecution had
miserably failed to bring home the charge against them.
Submissions on behalf of the Appellants
15. While assailing the impugned judgment and order,
Mr. Rajendra Narain, learned Senior Counsel has submitted inter
alia that in this case, the learned trial court has determined the age
of the victim/prosecutrix by taking into account a school leaving
certificate (Exhibit ‘2’) issued on 27.04.2019 under seal and
signature of one Naveen Kumar Shukla (PW-11) who deposed as
Headmaster of the Government School. Relying upon the
judgment of the Hon’ble Supreme Court in the case of P.
Yuvaprakash versus State Represented by Inspector of Police
reported in 2023 SCC OnLine 846 (paragraph ’14’) and a learned
Co-ordinate Bench judgment of this Court in the case of Mannu
@ Saddam @ Md. Mannu Sadam versus The State of Bihar
reported in 2024 (4) PLJR 843, learned Senior Counsel has
submitted that a school leaving certificate cannot be put in the
category of any of the documents as envisaged under Section 94(2)
(i) of the Juvenile Justice (Care and Protection of Children) Act,
2015 (hereinafter referred to as the ‘J.J. Act‘).
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16. Learned Senior Counsel further submits that the
prosecutrix was medically examined and her medical examination
report has been proved by Dr. Manju Jaiswal (PW-9) who has
stated about her age between 17 and 19 years. It is submitted that
in absence of any of the documents mentioned under Section 94(2)
(i) of the J.J. Act, the age determination report of the victim is
required to be relied upon as it is one of the documents which is
provided under clause (iii) of sub-Section (2) of Section 94 of the
J.J. Act. Reliance has been placed upon the judgment of the
Hon’ble Supreme Court in the case of Rajak Mohammad v. State
of H.P. reported in (2018) 9 SCC 248 and in the case of Court
on its own Motion vs. State of NCT of Delhi vs. State of NCT of
Delhi (Crl. Ref. 2/2024 judgment dated 02.04.2024) reported in
2024 SC OnLine Delhi 4484 to submit that in the cases under the
POCSO Act, where sexual assault has been alleged, whenever the
Court is called upon to determine the age of the victim based on
bone ossification test report, upper age given in reference range be
considered as the age of the victim. The submission is that, in this
case, the reference range in the medical report (Exhibit ‘5’) is
between 17 and 19 years. Thus, the upper extremity of the age
being 19 years, the prosecutrix has to be taken as major on the date
of occurrence.
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17. Learned Senior Counsel has further submitted that in
this case, the informant (PW-7) is the father of the prosecutrix. A
close reading of his deposition would show that he claims to have
informed the police by submitting a written information on the
date of occurrence itself. In paragraph ‘2’ of his deposition, he has
stated that with him his father-in-law had also gone to the police
station but the name of the person who had written the said
application is not known. In paragraph ‘3’ of his deposition, he has
stated that the written information which he had submitted to the
police station on 30.03.2019 was not before him. In view of this
statements of the informant (PW-7), it is submitted that the
prosecution has suppressed the first version. It is submitted that the
second written information on the basis of which the present case
has been lodged came to be submitted in the police station on
13.04.2019 i.e. after about 15 days of the date of occurrence but
the said FIR reached the Court of Jurisdictional
Magistrate/POCSO Court after three days i.e. on 16.04.2019. It is
submitted that in this case, there is not only an extraordinary delay
in lodging of the FIR, there is also a delay of three days in receipt
of the FIR in the Jurisdictional Court which would draw huge
doubt on the prosecution story. The veracity of the prosecution
case is likely to be doubtful on account of the delay as well as the
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findings of the learned trial court that the prosecutrix in this case is
not a wholly reliable witness.
18. Learned Senior Counsel has further drawn the
attention of this Court towards the deposition of the first I.O. who
has been examined as PW-10. It is submitted that in his
examination-in-chief, PW-10 has stated in paragraph ‘5’ that for
the recovery of the victim/prosecutrix, he had proceeded towards
Gulab Chowk Pathkhauli and reached the house of Sartaj Alam.
He conducted a raid but during the said raid, none of the accused
was present. In course of search of the house, inside a room, the
victim/prosecutrix was found in a restless and frightened
condition. It is submitted that there is no independent witness to
prove that search was conducted in the house of Sartaj Alam from
where the victim/prosecutrix was recovered. It is, therefore,
evident that the search was not conducted in accordance with law.
Attention of this Court has been drawn towards paragraph ’18’ of
the deposition of the I.O. (PW-10) wherein he has stated that he
had not conducted any investigation as to who was the owner of
the house from where the prosecutrix was recovered. This witness
was suggested by the defence that the victim was found in some
other house but he had wrongly shown that she was recovered
from the house of the accused persons.
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19. Learned Senior Counsel has further drawn the
attention of this Court towards paragraphs ’20’, ’21’ and ’22’ of
the deposition of the first I.O. (PW-10) to submit that the mother
of the prosecutrix had made a statement before the I.O. that her
daughter was in prior relationship with Sartaj and she had also said
that on the asking of her father, she had reached the village. The
I.O. has further stated that the victim/prosecutrix (PW-6) had
stated before him that she was in relationship with Sartaj and was
on visiting terms in his house. She had stayed in hotel with Sartaj
in Delhi. The victim had not stated before the I.O. that when she
was standing at the door of her maternal uncle then Rahim and
Sartaj came and they said that her Papa was calling her. The
prosecutrix had also not said to the I.O. that the accused persons
threatened her to kill and at the station, Manjur, Jafar, Govind and
Arman were already there who made her to sit in the train. Most
importantly, the I.O. (PW-10) has stated that before him, the
prosecutrix had not said that Sartaj and Rahim had committed rape
on her. It is pointed out that the defence had suggested to the I.O.
that the victim/prosecutrix was major and on her own will and
volition, she had left her house but then the accused were falsely
implicated.
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20. It is submitted that from the statement of the victim
under Section 161 CrPC and 164 CrPC, it would be evident that at
both the stages, she had disclosed about her relationship with
Sartaj. She has clearly stated that Sartaj had not made her to flee
away with her rather she had gone on her will with Sartaj. She has
stated that her brother-in-law and father had fraudulently called
them and made them to visit.
21. Learned Senior Counsel submits that in course of
trial, the prosecutrix (PW-6) had deviated from her earlier
statements and for the first time, she deposed that Sartaj and
Rahim had committed rape on her for eight days. It is submitted
that in her cross-examination, the prosecutrix has stated that she
had met Sartaj for the first time in Pihuni Bagh at the gate of her
maternal uncle and on the same day, she was kidnapped. It is
submitted that not only the I.O. (PW-10) has completely
contradicted the prosecutrix on all counts, even her own statements
recorded under Sections 161 and 164 CrPC are clearly indicating
that what have been deposed by the prosecutrix in course of trial
cannot be believed and it has come for the first time by way of her
after-thought. Apparently, the prosecutrix cannot be put in the
category of a sterling witness.
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22. Learned Senior Counsel has further pointed out that
learned trial court has convicted the appellants even though all the
circumstances which have been used against the appellants to
convict them were not brought to their notice in course of their
statements under Section 313 CrPC. By placing reliance upon the
judgment of the Hon’ble Supreme Court in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra reported in (1984)
4 SCC 116 (paragraphs ‘142’ to ‘144’), learned Senior Counsel
submits that if circumstances were not brought to the notice of the
accused, the conviction based on such circumstances would not be
sustainable. It is pointed out that the evidence of the
victim/prosecutrix (PW-6) or the I.O. (PW-10) that the victim was
confined in the house of Sartaj and that she was recovered from
the said house were not brought to the notice of the accused. On all
these grounds, prayer has been made to set aside the impugned
judgment and order of the learned trial court with respect to the
appellants.
23. Mr. Sriram Krishna and Ms. Akanksha Malviya, who
have been appointed learned Amicus Curiae, on earlier occasion
have assisted this Court by pointing out the discrepancies which
may be found with regard to the timing of the occurrence and other
circumstances in the deposition of the prosecution witnesses.
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Submissions of the State
24. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State has contested the appeals. It is submitted
that the learned trial court has, no doubt taken into consideration
the school leaving certificate (Exhibit ‘2’) for determination of age
of the prosecutrix, the entire case of the prosecution cannot be
thrown out only on the ground that the prosecutrix was major. It is
submitted that in course of trial, the prosecutrix has stated in her
examination-in-chief that she was subjected to rape by these two
appellants. In his opinion, even though the learned trial court has
not believed the prosecutrix as a wholly reliable witness, the
learned trial court has rightly believed her as regards the
commission of rape upon her by these two appellants. The learned
trial court has, for that reason examined the evidences to separate
the grains from the chaffs.
Submission of the Respondent No. 2
25. Mr. Krishna Kant Pandey, learned counsel
representing informant-Respondent No. 2 has simply endorsed the
submissions of learned Additional Public Prosecutor for the State.
Consideration
26. We have heard learned Senior Counsel for the
appellants, learned Amicus Curiae, learned Additional Public
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Prosecutor for the State as well as learned counsel for the
informant-Respondent No. 2 and have perused the records of the
trial court.
27. We have noticed from the materials available on the
record and the submissions noted hereinabove that the prosecutrix
went missing from the morning of 30.03.2019. We are not going
into the exact time as we are of the opinion that the difference of
one and one and half hour in the time would not be very relevant
for the purpose of the present case. According to the informant
(PW-7), he had gone to the police station with his father-in-law on
the same day and had reported the matter. He claims to have
submitted a written information but the said written information is
not available on the record. It is evident that the first version of the
prosecution story has not seen the light of the day.
28. We further find that in this case, the written
information (Exhibit ‘4’) was submitted on 13.04.2019. The First
Information Report was registered on the same day at 09:00 AM
but from the endorsement made at the top of the Formal FIR, it
appears that the same has been seen by the learned Judicial
Magistrate, Bettiah only on 16.04.2019. On perusal of the formal
FIR, it appears that in the column in which the date of dispatch of
FIR to the court is required to be mentioned and it is a statutory
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requirement, no date has been mentioned. It is, therefore, evident
that there is initially a delay of fifteen days in lodging of the FIR
and then three days in dispatch of the FIR to the Jurisdictional
Court. The delay in lodging of the FIR and dispatch of the same to
the Jurisdictional Court would create huge doubt on the
prosecution story.
29. On perusal of the evidences on the record, we find
that the victim/prosecutrix has stated in her 161 CrPC statement
and 164 CrPC statement that she reached Bettiah on the request of
her father. She reached there on 16.04.2019 but she had been
recovered on 22.04.2019. This seems completely unbelievable. If
she had reached there on 16.04.2019 on the request of her father,
the natural conduct would be to inform her father about her
reaching there. The I.O. (PW-10) has stated that he had raided the
house of Sartaj from where the prosecutrix was recovered but there
is no witness on this point, it is not known that in whose presence
the house of Sartaj was raided. The I.O. has himself stated that he
had not investigated as to who was the owner of the said house.
The fact that the prosecutrix was recovered from the house of
Sartaj is one of the circumstances which has been brought by the
prosecution against the appellants but apparently this circumstance
was not brought to the notice of the appellants in course of their
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statement under Section 313 CrPC, therefore, in the opinion of this
Court, this cannot be taken into consideration for purpose of
proving the guilt of the appellants.
30. This Court has further noticed that the learned trial
court has admitted the school leaving certificate/transfer (Exhibit
‘2’) issued by PW-11 on 27.04.2019. The defence has questioned
PW-11 and he was suggested that the certificate was not produced
before the I.O. in course of investigation. It is a fact that the
certificate (Exhibit ‘2’) was not produced before the I.O. in course
of investigation. It has been brought in evidence only in course of
trial. The I.O. has stated in paragraph ’15’ of his deposition that he
had not gone to the school to verify the age of the prosecutrix and
the age proving certificate (Exhibit ‘2’) is not attached with the
case diary. At this stage, we find from the judgment of the Hon’ble
Supreme Court in the case of P. Yuvaprakash (supra) that the
burden of proof as to the age of the prosecutrix is always upon the
prosecution. The prosecution, in this case, could not have relied
upon a document which was not collected in course of
investigation by the I.O., moreover, the document (Exhibit ‘2’)
does not confirm the description of any class of documents
mentioned under Section 94(2)(i) of the J.J. Act. The discussions
in this regard may be found in paragraph ’14’ of the judgment of
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the Hon’ble Supreme Court in the case of P. Yuvaprakash (supra)
which we reproduce hereunder for a ready reference:-
“14. Section 94(2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the concerned
examination board has to be firstly preferred in the
absence of which the birth certificate issued by the
Corporation or Municipal Authority or Panchayat and
it is only thereafter in the absence of these such
documents the age is to be determined through “an
ossification test” or “any other latest medical age
determination test” conducted on the orders of the
concerned authority, i.e. Committee or Board or Court.
In the present case, concededly, only a transfer
certificate and not the date of birth certificate or
matriculation or equivalent certificate was considered.
Ex. C1, i.e., the school transfer certificate showed the
date of birth of the victim as 11.07.1997. Significantly,
the transfer certificate was produced not by the
prosecution but instead by the court summoned
witness, i.e., CW-1. The burden is always upon the
prosecution to establish what it alleges; therefore, the
prosecution could not have been fallen back upon a
document which it had never relied upon. Furthermore,
DW-3, the concerned Revenue Official (Deputy
Tahsildar) had stated on oath that the records for the
year 1997 in respect to the births and deaths were
missing. Since it did not answer to the description of
any class of documents mentioned in Section 94(2)(i)
as it was a mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was below 18
years at the time of commission of the offence.”
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31. The judgment of the Hon’ble Supreme Court in P.
Yuvaprakash (supra) has been relied upon by a learned Co-
ordinate Bench of this Court in the case of Mannu @ Saddam @
Md. Mannu Sadam (supra). Paragraph ’39’ of the judgment of
this Court is being extracted hereunder:-
“39. As such, the age of the victim is determined on
the basis of birth certificate from the school or
matriculation or equivalent certificate, if available. In
other words, if the victim was a student of school, the
aforesaid certificates have precedence over other
mode of proof regarding the age. In the absence of
such certificate, birth certificate given by Municipal
Authorities or Panchayat is required to be considered
for determination of the age of the victim. In the
absence of the aforesaid certificates, the age of the
victim is required to be determined by ossification
test or any other latest medical test. Any other proof
like oral evidence is impliedly excluded from
consideration for determination of the age of the
victim.”
32. On the face of the judicial pronouncements, which
we have noted hereinabove, the reliance placed by the learned trial
court on Exhibit ‘2’ is misplaced.
33. In such circumstance, the only option open to the
trial court was to consider the medical report of the prosecutrix
which was proved by Dr. Manju Jaiswal (PW-9). In the said report
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
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(Exhibit ‘5’), the age of the prosecutrix has been assessed in
between 17 and 19 years.
34. At this stage, this Court would rely upon the
judgment of the Hon’ble Supreme Court in the case of Rajak
Mohammad (supra) which has also been relied upon by the
Hon’ble Division Bench of the Delhi High Court in the case of
Court on its own Motion (supra). Paragraph ’46’ of the judgment
of the Hon’ble Division Bench of Delhi High Court is being
reproduced hereunder:-
“46. As an upshot of our foregoing discussion, the
Reference is answered as under:-
(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.”
35. In fact, this Court has been persuaded on earlier
occasion in Cr. Appeal (DB) No. 461 of 2022 (Sangita Devi @
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
22/26
Sangeeta Devi Vs. State of Harbin & Anr.) decided on 23.01.2025
to agree with the views expressed by the Hon’ble Delhi High
Court. We are, therefore, of the opinion that in this case, the upper
extremity of the age being 19 years, the prosecutrix cannot be put
in the category of a ‘child’ as defined under Section 94 of the J.J.
Act, the provision applies to POCSO Act.
36. The learned trial court has recorded by way of a
finding that the prosecutrix is not a wholly reliable witness. In fact,
the trial court has found the material deviations in her statements
at different stages. This Court finds specific mention in the
judgment of learned trial court. The findings of the learned trial
court itself is sufficient to take a view that the prosecutrix in this
case would not come in the category of a sterling witness. Who
will be a sterling witness has been discussed by the Hon’ble
Supreme Court in the case of Rai Sandeep @ Deepu v. State (NCT
of Delhi) reported in (2012) 8 SCC 21. Paragraph ’22’ of the said
judgment is being extracted hereunder for a ready reference:-
“22. In our considered opinion, The “sterling
witness” should be of a very high quality and caliber
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
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
23/26truthfulness 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
offencecommitted, 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
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
24/26material 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.”
37. We have once again gone through the testimony of
the prosecutrix (PW-6). For the first time, in course of trial, she
has deposed that she was subjected to rape by Sartaj and Rahim.
The learned Senior Counsel has rightly pointed out from paragraph
’22’ of the deposition of the first I.O. (PW-10) that in course of her
statement before the I.O., she had not stated that she was subjected
to rape by the appellants. In fact, the I.O. has contradicted her
deposition on the strength of what were recorded by him in course
of investigation. We find substance in the submissions of learned
Senior Counsel for the appellants. Neither in course of her
statement under Section 161 CrPC nor while making her statement
under Section 164 CrPC, the prosecutrix supported the prosecution
case. No doubt, the statements under Section 164 CrPC are not in
the nature of substantive piece of evidence but it can be used for
purpose of corroboration or contradiction. In this regard, this Court
would rely upon the judgment of the Hon’ble Supreme Court in
the case of State of Rajasthan versus Kartar Singh reported in
(1970) 2 SCC 61.
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
25/26
38. There are more than sufficient materials on the
record to take a view that the prosecutrix has come out with a
completely contradictory version of her own case at the stage of
trial. She is not a sterling witness and there being material
improvement upon her own case which are in fact in the nature of
contradictions, it would not be safe to sustain the conviction of the
appellants.
39. In the light of the discussions made hereinabove, we
are of the considered opinion that the learned trial court has erred
in appreciation of the evidences available on the record. The
learned trial court has also erred in the matter of appreciation of
laws relating to determination of age of the prosecutrix/victim
under the POCSO Act. For all these reasons, we set aside the
impugned judgment and order of the learned trial court with
respect to Sartaj Alam @ Md. Sartaj Alam (appellant in Cr. Appeal
(DB) No. 12 of 2023) and Abdul Rahim Ansari (appellant in Cr.
Appeal (DB) No. 937 of 2022) giving the benefit of doubt.
40. This Court has been informed that the appellant in
Cr. Appeal (DB) No. 12 of 2023, namely, Sartaj Alam @ Md.
Sartaj Alam is in incarceration, he shall be released forthwith, if
not wanted in any other case. So far as the appellant in Cr. Appeal
(DB) No. 937 of 2022, namely, Abdul Rahim Ansari is concerned,
Patna High Court CR. APP (DB) No.12 of 2023 dt.07-08-2025
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he is on bail, he and his sureties are discharged from the liability of
the bail bond.
41. Both the appeals are allowed.
42. A copy of this judgment together with the trial
court’s records shall be sent down to the learned trial court.
43. We acknowledge the assistance rendered by Mr.
Sriram Krishna, learned Advocate in Cr. Appeal (DB) No. 937 of
2022 and Ms. Akanksha Malviya, learned Advocate in Cr. Appeal
(DB) No. 12 of 2023 as Amicus Curiae. In token of their
assistance, we direct that they shall be paid a sum of Rs. 15,000/-
(Rupees Fifteen Thousand Only) each by the Patna High Court
Legal Services Committee within one month from the date of
receipt of a copy of this judgment.
(Rajeev Ranjan Prasad, J)
( Ajit Kumar, J)
SUSHMA2/-
AFR/NAFR AFR CAV DATE Uploading Date 12.08.2025 Transmission Date 12.08.2025