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Patna High Court
Upendra Singh vs The State Of Bihar on 21 April, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.708 of 2022
Arising Out of PS. Case No.-554 Year-2019 Thana- GARKHA District- Saran
======================================================
1. Upendra Singh, Son of Arjun Singh, R/O Village- Thikaha, P.S.- Garkha,
District- Saran.
2. Ranjit Kumar @ Ranjit Singh, Son of Rakeshwar Singh, R/O Village-
Thikaha, P.S.- Garkha, Dist.- Saran
3. Ajit Kumar, Son of, Sri Lalan Rai, R/O Village- Thikaha, P.S.- Garkha,
Dist.- Saran
... ... Appellants
Versus
1. The State of Bihar
2. 'X' (Victim), C/o Kajal Miyan, Resident of Village-Thikaha Maricha,
P.S.-Garkha, District-Saran.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs.Vaishnavi Singh, Advocate
Mrs. Aishwarya Shree, Advocate
Mr. Ritwik Thakur, Advocate
For the State : Mr. Abhimanyu Sharma, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 21-04-2025
Heard learned counsel for the appellants and learned
Additional Public Prosecutor for the State as also perused the trial
court's records.
2. Notice has been served upon the informant/victim but
no one has appeared on behalf of her to contest the appeal.
3. The present appeal has been preferred for setting aside
the judgment of conviction dated 15.07.2022 (hereinafter referred
to as the 'impugned judgment') and the order of sentence dated
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21.07.2022
(hereinafter called the ‘impugned order’) passed by the
learned Exclusive Special Judge (POCSO)-cum-Additional Sessions
Judge-VI, Saran at Chapra (hereinafter called ‘the learned trial
court’) in ST POCSO No. 99 of 2019 arising out of Garkha P.S. Case
No. 554 of 2019.
4. By the impugned judgment, the appellants have been
convicted for the offences punishable under Section 376(D) of the
Indian Penal Code (in short ‘IPC‘) and Section 6 of the Protection
of Children from Sexual Offences Act (in short ‘POCSO Act‘). By
the impugned order, the appellants have been ordered to undergo
rigorous imprisonment for 20 years and a fine of Rs. 25,000/- each
under Section 6 of the POCSO Act and in default of payment of
fine, they have to further undergo simple imprisonment for one
year.
Prosecution Case
5. The prosecution case is based on the fardbeyan of the
victim (X) aged about 17 years recorded on 08.09.2019 at 18:35
hours (6:35 PM). The fardbeyan has been marked Exhibit-3. In her
fardbeyan, she has stated that on 05-09-2019 at about 7:00 P.M.,
she had gone to meet one Shamshad in the maize field on a false
pretext to her mother that she was going to defecate. When she
was sitting with Shamshad and was talking to him, the accused
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persons, namely, (1) Upendra Singh, (2) Ajit Kumar and (3) Ranjit
Kumar came there, they caught hold of her hand and then slammed
her down in the maize field, then Ajit forced her odhani into her
mouth whereafter Upendra committed rape on her. She has alleged
that Ranjit was making video and thereafter, Ajit also committed
rape on her. They had threatened her that if she would raise hulla
then her video would be uploaded on Facebook and would be
made viral. Towards the end of her fardbeyan, she has alleged that
Md. Shamshad had hatched the conspiracy, he had called the
accused persons and they committed rape with his consent.
6. On the basis of this fardbeyan, Garkha P.S. Case No.
554 of 2019 dated 08.09.2019 was registered under Section
376(D) and Section 6 of the POCSO Act against accused, namely,
(1) Upendra Singh, (2) Ajit Kumar, (3) Ranjit Kumar and (4) Md.
Shamshad. After investigation, police submitted chargesheet
bearing no. 450 of 2019 dated 04.12.2019 under Sections
376(D)/120B IPC and Section 6 of the POCSO Act against
Upendra Singh and Ranjit Kumar keeping investigation pending
against Ajit Kumar and Md. Shamshad. On the basis of this
chargesheet, learned Additional District Judge-I took cognizance
of the offences vide order dated 18.12.2019 and separated the
records of Ajit Kumar and Md. Shamshad. The accused persons
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
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were explained the charges to which they pleaded innocence and
claimed to be tried. Accordingly, charges were framed vide order
dated 06.02.2020 against Upendra Singh and Ranjit Kumar for the
offence punishable under Sections 376(D)/34, 120B IPC and
Section 6/34 of the POCSO Act.
7. Thereafter, police submitted a supplementary
chargesheet bearing no. 201 of 2020 dated 25.05.2020 under
Section 376(D)/120B IPC and Section 6 of the POCSO Act against
Ajit Kumar and Md. Shamshad, accordingly, learned trial court
took cognizance vide order dated 27.05.2020 and the records of
Md. Shamshad was sent to Juvenile Justice Board, Saran for his
age determination. The accused Ajit Kumar was explained the
charges to which he pleaded innocence and claimed to be tried.
Accordingly, charges were framed against Ajit Kumar vide order
dated 17.09.2020 for the offence punishable under Sections
376(D), 120B IPC and Section 6 of the POCSO Act.
8. The prosecution has examined as many as seven
witnesses and marked some document exhibits. The defence has
also examined two witnesses. The description of the prosecution
witnesses and defence witnesses and the documents brought in
evidence by the prosecution are given hereunder in tabular form
for a ready reference:-
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
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PW 1 Mother of the victim
PW 2 “X” Victim
PW 3 Ramzan Ali
PW 4 Ganesh Prasad (Investigation Officer)
PW 5 Dr. Kiran Ojha
PW 6 Rashida Begum
PW 7 Nirmala KumariList of Exhibits Produced on behalf of Prosecution
Exhibit P-1/PW 2 Signature of PW 2 on Fardbayan
Exhibit P-2/PW -2 Signature of PW-2 on the statement recorded under
section 164 Cr. P.C.
Exhibit P-3/PW 4 Signature and handwriting of the SHO identified by
PW 4 over Fardbayan.
Exhibit P-4/PW 4 Formal F.I.R.
Exhibit P-5/PW 4 Identification of Signature of ASI Nirmala Kumari
Over Seizure Memo by PW- 4
Exhibit P- 6/PW 5 Medical Report.
Exhibit P-7/Prosecution Contents of statement under Section 164 Cr. PC
Exhibit P-8/P7 Signature of PW 7 over fardbayan.
List of Defence Witnesses
DW-1 Yogendra Rai
DW-2 Laldev Rai
Findings of Learned Trial Court
9. Learned trial court after analysing the evidences on
the record found that in the present case, the victim’s testimony is
clear, cogent and unwavering insofar as it concerns the allegation
against the appellants. Learned trial court found that the victim (X)
is consistent in her evidence right from the very beginning and
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
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and she has fully supported the case of the prosecution. Learned
trial court found that there is nothing in her cross-examination to
discard her evidence or brand it as unbelievable or untrustworthy.
Learned trial court observed that the evidence of victim inspires
confidence and is free from any shadow of doubt.
10. Learned trial court found that though PW-1 is not an
eye witness to the occurrence but she is witness to the fact that the
victim (X) told her as to who committed the alleged offence.
Learned trial court further found that PW-7 has also supported the
prosecution case as said by PW-2 (victim).
11. Learned trial court observed that the argument raised
by the defence counsel is purely technical and none of the
arguments tarnish the case of the prosecution that the victim was
raped by the accused persons. Learned trial court found that the
evidences brought out by the defence appears to be planned and
thoughtful and it does not dismantle the prosecution’s case rather,
it supplements testimony of the victim regarding presence of the
accused persons with her at the time of occurrence.
12. Therefore, learned trial court after close scrutiny of
the evidence/deposition of the victim (PW-2) available on the
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record held the appellants guilty for the offences punishable under
Sections 376(D) IPC and Section 6 of the POCSO Act.
Submissions on behalf of the Appellants
13. Learned counsel for the appellants has submitted that
the learned trial court has failed to appreciate the contradictions
available on the record in the evidence of the prosecution
witnesses and has committed error in convicting the appellants for
the alleged offences.
14. Learned counsel submits that in this case, place of
occurrence has not been proved as per the prosecution case even as
the I.O. (PW-4) did not find any sign of trampled/damaged crops at
the place of occurrence.
15. Learned counsel has further drawn the attention of
this Court towards the evidence of the I.O. (PW-4) who has stated
in paragraph ‘6’ of his deposition that during investigation, he
came to know that the victim and Shamshad Mian were studying
together and they had developed love. The I.O. has also stated that
the victim and Shamshad Mian were meeting each other secretly.
16. Learned counsel submits that the place where the
seizure list in respect of clothes (salIwar) of the victim was
prepared is said to be the house of the victim but the I.O. had
deposed in paragraph ‘7’ of his deposition that during
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investigation, he had not gone to the house of the victim and had
not tried to find out whether there was latrine in her house or not.
17. Learned counsel submits that the Doctor (PW-5) did
not find any evidence of recent intercourse. In the evidence of the
Doctor, it has also come that the victim was habituated to
intercourse. Attention of this Court has been drawn by learned
counsel towards paragraph ‘6’ of deposition of PW-5 in which she
has clearly stated that hymen of the private part of the victim was
found old ruptured and this was because she was habituated to sex.
Learned counsel further submits that the victim in her evidence has
stated that she was raped by at least two persons in the maize field
and they had applied force on her but it is her own statement that
she has not received any mark of injury/scratch on her body and
her clothes were not torn.
18. Learned counsel further submits that the medical
evidence in the form of evidence of the doctor available on the
record clearly shows that the victim was found above 19 years of
age on the basis of her dental and ossification test.
19. Learned counsel has also taken this court through the
evidence of DW-1. In his cross-examination, this witness has
stated that he is not related to the accused persons. He has further
stated in his cross-examination that he had seen the victim and
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Shamshad talking to each other during his visit to the panchayat.
This witness in his examination-in-chief has stated that the victim
and Shamshad were in love and on the date of occurrence,
Shamshad and the victim both were in an objectionable position
near the vegetable field which is beside the maize field of Upendra
Shah and Arun Shah. Learned counsel submits that DW-1 has
stated that Upendra Shah and Arun Shah saw them in an
objectionable condition, Shamshad fled away whereafter the
accused persons had brought the victim to her house and took her
to her mother. It is further submitted that DW-1 has stated that in
his presence, the mother of the victim was saying that the accused
persons were trying to bring disrepute to her reputation, on this
DW-1 said that there will be a panchayati. He has stated in
paragraph ‘5’ of the deposition that no such occurrence had taken
place. The panchayati did not take place because in the said
panchayati, the victim and her family members did not come. After
about four days, he came to know that they have lodged a First
Information Report.
20. The another defence witness, namely, Laldev Rai
(DW-2) has also stated that on 05.09.2019, he was going to meet
Dr. Mukesh, on way he heard hulla at the door of one Kajal Mian
where he found that Yogendra Rai (Sarpanch) and other villagers
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were present. The accused persons had brought the victim to her
mother and the mother of the victim was saying that they were
trying to bring disrepute to her family. Panchayat was fixed after
three days but no one came.
21. Learned counsel lastly submits that the above
evidence of independent witnesses have completely been ignored
by the learned trial court and erroneously held the appellant guilty
which is not sustainable in the eye of law.
Submissions of the State
22. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor has though opposed the appeal but at the same time
does not dispute that so far as the place of occurrence in this case
is concerned, the same has not been duly proved by the
prosecution and the medical evidence is not corroborating the
victim’s version.
Consideration
23. The prosecution case is based on the fardbeyan of
the victim (X) aged about 17 years recorded on 08.09.2019 at
18:35 hours (6:35 PM). The fardbeyan has been marked Exhibit-3.
In her fardbeyan, she has stated that on 05.09.2019 at about 7:00
P.M., she had gone with one Shamshad on a false pretext to her
mother that she was going to defecate. When she was sitting with
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Shamshad and was talking to him, the accused persons came there,
they caught hold of her and then slammed her down in the maize
field, then Ajit forced her odhani into her mouth whereafter
Upendra committed rape on her. She has alleged than Ranjit was
making video and thereafter, Ajit also committed rape on her. They
had threatened her that if she would raise hulla then her video
would be made viral. Towards the end of her fardbeyan, she has
alleged that Md. Shamshad had hatched the conspiracy, he had
called the accused persons and they committed rape with his
consent.
24. This Court finds from the evidence on the record that
the victim had made her statement under Section 164 CrPC before
the learned Judicial Magistrate, 2nd Class, Saran which has been
marked Exhibit ‘7’. In her statement before the learned Magistrate,
she has alleged that Shamshad was her classmate and they were
friends. She has further stated that he was inviting her outside her
house to meet and he was telling her that he was in love with her.
She has further stated that on the date of occurrence (05.09.2019),
she had gone to meet him adjacent to her house where she goes for
toilet. She has stated that at about 6:40 PM when she had gone to
meet Shamshad, the three boys came to her whereafter Shamshad
fled away and then all the three committed rape on her. This time
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she did not allege that Shamshad was in conspiracy with the
accused person and the alleged act was committed with his
consent.
25. In course of her deposition in trial, the victim has
been examined as PW-2. In her examination-in-chief, she has tried
to save Shamshad. She has stated that at about 06:00 P.M., she was
in the field and was talking to Shamshad when Upendra, Ranjit
and Ajit came, they assaulted Shamshad and made him to flee
from the place whereafter she was raped. This statement of the
victim (PW-2) is a complete departure from her fardbeyan. She has
stated that she had gone to the Garkha Police Station and told the
entire story to the Darogaji who recorded her statement and she put
her signature therein. She has proved her signature on the
fardbeyan as Exhibit-1. She has stated that she was treated in
Chhapra Sadar Hospital. In her cross-examination, this victim
(PW-2) has stated that prior to the said occurrence, she had never
established any physical relationship with anyone. She was not
talking to the three accused persons, though she had seen them
prior to the occurrence. As regards the place of occurrence, she has
stated that the occurrence had taken place in the maize field, the
plants were neither big nor very small in size. She has further
stated that she had resisted the occurrence, the whole occurrence
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had taken place for half an hour and during this period, the maize
crops were also damaged but she cannot say that to what extent the
crops were damaged.
26. Again this Court is of the view that if Shamshad was
assaulted and he was made to flee from the place of occurrence,
the natural conduct of Shamshad would be to inform the ongoing
occurrence to the family of PW-2 and in that case, it cannot be
believed that accused persons would have continued with the
commission of rape for half an hour. It has come in evidence that
the distance between her house and the place of occurrence is of 3-
4 minutes walk. PW-2 has further stated in paragraph ‘6’ of her
deposition that the accused persons had applied force during the
occurrence but she had not received any injury/scratch and there
was no mark on her body. She has stated that the accused persons
had not assaulted her, the clothes which she was wearing at the
time of occurrence were not torn, though the drawstring (‘nada’)
of the salwar was broken.
27. This Court is of the opinion that in case two persons
of young age applied force on P.W.-2 and slammed her down in the
maize field and raped her for 30 minutes, it is difficult to believe
that P.W.-2 would not have suffered any injury/scratch and there
would not be any mark of struggle on her body. She has stated that
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bleeding had not taken place on her private part and no injury was
caused on her private part. She cannot say the period during which
she has been lying on the earth at the place of occurrence.
28. PW-2 has stated that in the boundary of the place of
the occurrence, in all the four sides there were fields. At some
distance, there are houses but she cannot say the distance. She has
also stated that the road leading to the village passes through the
side of the field. She has stated that she had herself stood up after
the occurrence and had reached her house from the place of
occurrence in 3-4 minutes. She had not met anyone on way.
29. PW-2 has further stated that she had not seen the
video of the occurrence and she cannot say whether anybody has
seen the video or not. She was also not aware whether the video
was with the police or not.
30. This Court finds that in this case there is no
evidence at all with regard to making of video it is also required to
be noticed that it was month of September and at about 7:00 P.M.,
darkness would have prevailed making it improbable to prepare a
video at a place in absence of light.
31. PW-2 has further stated that she had at first given
information of the occurrence to her mother but thereafter she had
not told about the occurrence to anyone else. There was no latrine
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
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in her house. This witness was suggested by the defence that she
was above 19 years of age which she denied. The defence further
suggested that the accused persons had found her involved in
committing wrong act with Shamshad for which they had tried to
convince her and her family members in which quarrel took place
and because of this anger, a false case has been raised.
32. As regards the place of occurrence, the I.O. (PW-4)
has not supported the victim (PW-2). He has stated in paragraph
‘4’ of his deposition that at the place of occurrence which is said to
be a field, he had not found any damaged crop or ready crop, there
was no sign of trampled crops at the place of occurrence. The I.O.
(PW-4) has stated in paragraph ‘6’ of his deposition that during
investigation, he came to know that the victim and Shamshad Mian
were studying together and they had developed love. The I.O. has
also stated that the victim and Shamshad Mian were meeting each
other secretly. The clothes (salwar) of the victim was seized but
was not sent to the Forensic Science Laboratory (F.S.L.). He has
stated that he had taken the cloth to the F.S.L. but the clothes were
not taken on the pretext of Corona period and the same remained
in the police station. This Court finds that the seizure list of salwar
has been prepared on 08.09.2019 at 06:00 P.M., which is prior to
recording of the fardbeyan of the victim. The place where the
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seizure list was prepared is said to be the house of the victim but
the I.O. had deposed in paragraph ‘7’ of his deposition that during
investigation, he had not gone to the house of the victim and had
not tried to find out whether there was latrine in her house or not.
33. There is a statement of the victim that she had gone
to the Garkha police station where she had recorded her statement.
The fardbeyan is also showing the place of recording of her
statement in Garkha police station, the I.O. never went to the
residential house of the victim during investigation, therefore, the
preparation of seizure list showing that the cloth of the victim was
seized in the house of the victim at village Thikaha becomes
highly doubtful. The two seizure list witnesses, namely, Mahfooz
Alam and Naseera Begum have not been examined by the
prosecution.
34. The victim has stated in her fardbeyan that she had
gone to meet Shamshad in the maize field and while going to meet
him, she had made a false pretext to her mother that she was going
to defecate. In her statement under Section 164 CrPC, she has
stated that she had gone to meet Shamshad adjacent to her house.
She had left her house on a false pretext and it cannot be believed
that she would go just adjacent to her house to meet Shamshad.
She has herself stated about the boundary of the place of
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occurrence. It is her own statement that from all the four sides to
the place of occurrence, there are fields, therefore, it is evident that
her house is not adjacent to the place of occurrence. She has stated
that at some distance from the place of occurrence there are houses
but she has not given the distance at which the houses are there.
She has stated that beside the field, village road is passing. The
I.O. has also given the description of the place of occurrence. He
has stated that in the boundary near the place of occurrence, there
are maize crop land of Arun Shah, Pashuram Sharma, Upendra
Singh and Dhama Shah. The I.O. (PW-4) has not corroborated the
place of occurrence as disclosed by the victim. Her 164 Cr.P.C.
statement is being noted for testing the consistency of PW-2 as
regards her description of the place of occurrence.
35. The victim has stated that she was raped at least by
two persons in the maize field and they had applied force on her
but it is her own statement that she has not received any mark of
injury/scratch on her body and her clothes were not torn. Dr. Kiran
Ojha who had examined the victim girl has deposed as PW-5. It is
important to take note of her evidence. This Court would
reproduce the deposition of the Doctor (PW-5) hereinbelow for a
ready reference:-
“Examination in chief
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1. On 09-09-2019 I was posted as Medical Officer Sadar
Hospital Chapra and on the same day at 01:30 PM. I
examined victim Mobina Khatun aged daughter of Kajal
Miyan Thikha of garkha Distt Saran reg. no. 193 and found
the following injuries:
Mark of identification-One til on right check
Teeth: 32 altogether
Height : 5ft
Weight: 39 Kg
Examination. There is no injury on her whole body and
private parts.
Pubic Hair, Axillary Hair and Breast well developed.
Vagina admit two fingers easily. Hymen old ruptured.
Investigation to vaginal swab taken and send for
Histopathological examination in Sadar Hospital Chapra.
X-ray pilvis A.P. veiw
X-ray elbow A.P. veiw both
X-ray wrist A.P. veiw both in Sadar Hospital Chapra.
Report: Histopathological examination done by Dr. Deepak
Kumar say that spermatozoa not found neither alive nor
dead. R.B.C. present epithelial cells a few.
X-ray reporting done by Dr. S.K. Singh says that
Epiphysis of iliac crest fused.
Epiphysis of lateral and medial epicondyle of humurs
fused.
Epiphysis of lower end of radius and ulna fused.
Age above nineteen years.
Opinions : On the account of above facts we can say that
there is no any evidence of recent intercourse. But victim
habituated to intercourse. Age of victim above nineteen
years.
2. This injuries report is written and signed by me. Mark as
exhibit “6”
Cross examination on behalf of defence
3. ihfM+rk ds “kjhj ij dksbZ ckg; t[e ugha ik;k FkkA
4- esfMdy tk¡p esa nkarks vkSj gM~Mh ds tk¡p ds vk/kkj ij ihfM+rk
dh mez 19 o’kZ ls mij ikbZA
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
19/25
5- tk¡p ds fglkc ls ihfM+rk iwoZ ls lsDl dh vH;Lr FkhA ihfM+rk
ds izkbosV ikVZ esa thfor ;k ejk gqvk LieZ ugha ik;k x;kA
U;k;ky; iz”u
6- eSus ik;k fd ihfM+rk ds izkbosV ikVZ dk gkbeu vksYM jsipj Fkk]
vl vk/kkj ij eSaus ik;k fd ihfM+rk iwoZ ls lsDl dh vknh gSA
gkbeu dh tk¡p ls gh ;s irk pyrk gS dh gkbeu jsipj gksus dk
dkj.k lsDl gS ;k dksbZ vksj otg ls gSA bl eqdnek es gkbeu
jsipj gksus dk dkj.k iwoZ ls lsDl dk fd;k tkuk ik;k x;kA”
(name of the victim in the deposition of PW 5 has
been masked by this Court ) .
36. From the evidence of the Doctor, it would appear
that on the basis of her dental and ossification test, the victim was
found above 19 years of age. The Doctor did not find any evidence
of recent intercourse. It has also come in the evidence of the
Doctor (PW-5) that the victim was habituated to intercourse. In
paragraph ‘6’ of her deposition PW-5 has clearly stated that hymen
of the private part of the victim was found old ruptured and this
was because she was habituated to sex. This Court finds from the
evidence of the Doctor (PW-5) that in fact her evidence completely
rules out the occurrence of rape upon the victim (PW-2). It is not
believable that if she would have been subjected to penetrative
sexual act by two persons, the Doctor would not find any sign of
injury on her private parts.
37. Regarding the age of the victim, this Court has
noticed that the Doctor (PW-5) has opined on the basis of her
dental and ossification test that the victim was above 19 years of
age. The defence also suggested the victim during her cross
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
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in course of trial, on 13.12.2021, the prosecution moved an
application under Section 294 CrPC and requested the trial court to
mark the educational certificate of the victim exhibits. It appears
that the trial court has recorded that in the interest of justice, the
educational certificates are required to be marked exhibits and the
defence has not raised any objection. The mark-sheet of the victim
of Bihar School Examination Board, 2020 annual examination has
been marked as Exhibit ‘P-8’ whereas another certificate of the
Bihar School Examination Board has been marked Exhibit ‘P-9’. It
is submitted by learned counsel for the appellants that on perusal
of Exhibits ‘P-8’ and ‘P-9’, it would appear that those are xerox
copies of the mark-sheet and the certificate which would not
inspire confidence because in the mark-sheet (Exhibit ‘P-8’),the
victim has been shown ‘fail’ whereas in the certificate (Exhibit ‘P-
9’), she has been shown under ‘Third Division’. Her date of birth
mentioned in the certificate is 11.01.2004 whereas the registration
number of the school would show that she was registered in the
year 2019.
38. This Court further finds that in the present case, the
defence has brought two witnesses. The first defence witness is
Yogendra Rai (DW-1) who is Sarpanch of Mukhimpur Panchayat.
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
21/25The village of the victim (PW-2) would fall within this panchayat.
This witness is a resident of village Fursatpur which is situated at a
distance of half kilometer from the village Thikaha. He has stated
that he had come to know about the occurrence from people and
reached village Thikaha where he found that Upendra, Ranjit and
Ajit all the three were taking the victim (X) to her house. He heard
there that the victim and Shamshad were in love affair and on the
date of occurrence, Shamshad and the victim both were in an
objectionable position near the vegetable field which is beside the
maize field of Upendra Shah and Arun Shah. This witness has
stated that Upendra Shah and Arun Shah saw them in an
objectionable condition, Shamshad fled away whereafter the
accused persons had brought the victim to her house and took her
to her mother. This witness has stated that in his presence, the
mother of the victim was saying that the accused persons were
trying to bring disrepute to her reputation, on this DW-1 said that
there will be a panchayati. He has stated in paragraph ‘5’ of the
deposition that no such occurrence had taken place. The
panchayati did not take place because in the said panchayati, the
victim and her family members did not come. After about four
days, he came to know that they have lodged a First Information
Report. In his cross-examination, this witness has stated that he is
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
22/25not related to the accused persons. He has further stated in his
cross-examination that he had seen the victim and Shamshad
talking to each other during his visit to the panchayat.
39. The another defence witness, namely, Laldev Rai
(DW-2) has also stated that on 05.09.2019, he was going to meet
Dr. Mukesh, on way he heard hulla at the door of one Kajal Mian
where he found that Yogendra Rai (Sarpanch) and other villagers
were present. The accused persons had brought the victim to her
mother and the mother of the victim was saying that they were
trying to bring disrepute to her family. Panchayat was fixed after
three days but no one came.
40. This Court finds that the defence witnesses in this
case are independent witnesses. DW- 1 is the Sarpanch of the
Panchayat who is not related to the accused persons, therefore, his
evidence would carry much weight and the same is required to be
considered keeping in view the other materials present on record.
According to DW-1, he heard that the victim and Shamshad were
in an objectionable position near the vegetable field which is
beside the field of Arun Sah and Upendra Sah. In this connection,
the evidence of the I.O. (PW-4) would be relevant to take note of.
I.O. (PW-4) has stated in his examination-in-chief that in the East
side of the place of occurrence, there is a maize field/plot of Arun
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
23/25Sah. It is this place where the victim claims that she was subjected
to rape by the accused persons but neither in course of inspection
of the place of occurrence any sign of damage or trampling of
crops were found in the maize field of Arun Sah nor there is any
independent witness from the village who claims to have seen the
accused persons committing rape on the victim. This becomes
important to note because the victim has stated in her deposition
that beside the land which is the place of occurrence, a village road
is passing and the alleged act of rape continued for half an hour. In
this connection, paragraph ‘9’ of her deposition may be looked
into. The place of occurrence is, thus, beside a road which is the
route of coming into and going outside the village.
41. Be that as it may, the contention of learned counsel
for the appellants is that in this case, the victim cannot be put in
the category of a sterling witness. Reliance has been placed on the
judgment of the Hon’ble Supreme Court in the case of Rai
Sandeep @ Deepu versus State (NCT of Delhi) reported in
(2012) 8 SCC 2021. The relevant paragraph of the judgment is
being reproduced hereunder for a ready reference :-
“22. ……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
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
24/25test 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 ……”
42. We have already taken note of the submissions of
learned Additional Public Prosecutor for the State. Mr. Abhimanyu
Sharma, learned Additional Public Prosecutor has though opposed
the appeal but at the same time does not dispute that so far as the
place of occurrence in this case is concerned, the same has not
been duly proved by the prosecution and the medical evidence is
not corroborating the victim’s version. On appreciation of the
entire evidence on the record, we would take a view that the victim
(PW-2) in this case can not be put in the category of a ‘sterling
witness’.
Patna High Court CR. APP (DB) No.708 of 2022 dt.21-04-2025
25/25
43. Having regard to the entire materials discussed
hereinabove, this Court is of the considered opinion that in this
case, the prosecution has miserably failed to lay down even the
foundation of the case to attract the presumption under Section 29
of the POCSO Act. The evidences available on the record do not
inspire confidence of this Court and to this Court, it appears that
the conviction of the appellants on the sole testimony of the victim
(X) would not be safe.
44. In result, we set aside the impugned judgment and
order. The appellants are acquitted of the charges giving them benefit
of doubt.
45. The appellants are said to be in custody. They shall be
released forthwith if not wanted in any other case.
46. This appeal is allowed.
47. The trial court records together with a copy of this
judgment shall be sent down.
(Rajeev Ranjan Prasad, J)
( Ashok Kumar Pandey, J)
Neha/-
AFR/NAFR CAV DATE Uploading Date 24.04.2025 Transmission Date 24.04.2025
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