Patna High Court
Victim vs The State Of Bihar on 18 August, 2025
Author: Sudhir Singh
Bench: Sudhir Singh, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.598 of 2024
Arising Out of PS. Case No.-397 Year-2021 Thana- SAHPUR District- Bhojpur
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Victim D/O Manish Tiwary R/O Vill. and P.O.- Bilauti, P.S.- Shahpur, Dist.-
Bhojpur, under Guardianship of his Natural and Legal Gardian namely
Manish Tiwari aged about 43 years, S/O Avadhesh Tiwary
... ... Appellant/s
Versus
1. The State Of Bihar
2. Manu Tripathi Son of Mukul Chand Tripathi R/O Vill. and P.O.- Bilauti,
P.S.- Shahpur, Dist.- Bhojpur
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Arvind Kumar, Advocate
For the State : Mr. Ajay Mishra, APP
For the Informant/Victim: Mr. Ajay Kr. Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date: 18-08-2025
The present criminal appeal has been preferred under
Section 372 of the Code of Criminal Procedure against the
judgment of acquittal dated 19.01.2024 passed by the learned II
Additional District and Sessions Judge VI-cum-Special Judge
POCSO, Bhojpur in POCSO Case No. 14 of 2022 arising out of
Shahpur P.S. Case No. 397 of 2021, whereby Respondent No. 2
has been acquitted by the learned Trial Court from the charges
of Sections 354, 448, 504 and 506 of the Indian Penal Code and
Section 8 of the POCSO Act.
2. Vide order dated 26.10.2024, notice was issued to
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Respondent No. 2, upon which he appeared by filing
Vakalatnama through learned Advocate, Mr. Ajay Kumar Singh.
3. The prosecution case, in brief, is that on
11.12.2021
, between 9:00AM to 10:00 AM, the
informant/victim was alone at home, as her parents had gone
out. During this time, the accused, Manu Tripathi (Respondent
No.2), came to her residence under the pretext of conducting an
election campaign despite the Model Code of Conduct being in
force. He unlawfully entered the house and physically abused
the victim.
4. On the basis of written complaint of the informant,
Shahpur P.S. Case No. 397 of 2021 was instituted under
Sections 354, 448, 504, and 506 of the I.P.C. and Section 8 of
the POCSO Act and investigation was taken up by the police.
The police after investigation submitted charge sheet against
Respondent No. 2 and, accordingly, cognizance was taken.
Thereafter the case was committed to the Court of Sessions.
Charges were framed against the accused persons to which they
pleaded not guilty and claimed to be tried.
5. During the trial, the prosecution examined four
witnesses i.e., PW1- Victim, PW2- Victim’s Father, PW3-
Victim’s Mother and PW4- Manoj Kumar, Investigating Officer.
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The prosecution has also produced certain documents, which are
marked as Exhibits: Exhibit P1-signature of the
victim/informant on the written application, Exhibit P2-
endorsement of SHO on the written application, Exhibit P2a &
2b-signature of SHO on the backside of the F.I.R., Exhibit X-
photocopy of admit card of the victim, Exhibit X-1-photocopy
of transfer certificate of the victim, Exhibit 3- handwriting and
signature on charge sheet. After closure of prosecution evidence,
the statements of the accused persons were recorded under
Section 313 Cr.P.C. and after conclusion of trial, learned trial
Court has acquitted the accused persons.
6. Learned counsel for the appellant has submitted
that the impugned judgment passed by learned Trial Court is bad
in law as well as on facts. Further, it was submitted that the
learned Trial Court has failed to scrutinize the evidence on the
record, which proved the manner of occurrence as well as place
of occurrence, erroneously reached on wrong findings.
7. We have heard learned counsel for the appellant
and have also gone through the records of the case.
8. The sole question that requires consideration by this
Court is whether the impugned judgment of acquittal requires
any interference by this Court.
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9. Upon perusal of the record, it is evident that
Mukesh and Subhanti to whom the victim allegedly narrated the
incident, were not examined at trial. Mukesh is stated to be the
scribe of the complaint on the victim’s narration. Non-
examination of such material witnesses, without any cogent
explanation, attracts an adverse inference under Section 114(g)
of the Indian Evidence Act, 1872, which reads as :
“Section 114. Court may presume existence of
certain facts: The Court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common
course of natural events, human conduct and
public and private business, in their relation to
the facts of the particular case.
llustrations
The Court may presume —
(a) that a man who is in possession of stolen
goods soon after the theft is either the thief or has
received the goods knowing them to be stolen,
unless he can account for his possession;
(b) that an accomplice is unworthy of credit,
unless he is corroborated in material particulars;
(c) that a bill of exchange, accepted or endorsed,
was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been
shown to be in existence within a period shorter
than that within which such things or states of
things usually cease to exist, is still in existence;
(e) that judicial and official acts have been
regularly performed;
(f) that the common course of business has been
followed in particular cases;
(g) that evidence which could be and is not
produced would, if produced, be unfavourable to
the person who withholds it;
(h) that if a man refuses to answer a question
which he is not compelled to answer by law, the
answer, if given, would be unfavourable to him;
(i) that when a document creating an obligation is
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been discharged.
But the Court shall also have regard to such facts
as the following, in considering whether such
maxims do or do not apply to the particular case
before it: –”
10. As the complaint/FIR is not substantive evidence,
its contents could have been proved only through the scribe and
the victim; in their absence the prosecution failed to lead the
best evidence and the defence stands prejudiced. At this
juncture, it is noteworthy to point out the decision made by the
Hon’ble Supreme Court in the case of Malkiat Singh and Ors.
vs. State of Punjab reported in 1991 SCC (4) 341, wherein it
was observed that:
“The First Information Report given
by the Chowkidar was admitted in evidence with
the consent of the defence. It is settled law that
the First Information Report is not substantive
evidence. It can be used only to contradict the
maker thereof or for corroborating his evidence
and also to show that the implication of the
accused was not an after-thought….”
11. The prosecution has not produced any
documentary or medical evidence regarding the age of the
victim. In the absence of reliable proof as contemplated by
settled principles (birth certificate/school records and, failing
those, medical opinion), the fact that the victim was a “child”
under Section 2(d) of the POCSO Act remains unproved.
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Consequently, the provisions of the POCSO Act cannot be
invoked, and the statutory presumption under Section 29 does
not arise. At this juncture, it is noteworthy that in the case of
Rishipal Singh Solanki vs. State of Uttar Pradesh & Others
rerported in (2022) 8 SCC 602, the Hon’ble Supreme Court
explained the law relating to the determination of age in claims
of juvenility. The Court held that when someone raises a claim
of juvenility, the initial burden of proof lies on that person to
satisfy the Court. However, if the person is able to produce
documents mentioned under Rule 12(3)(a)(i),(ii), and (iii) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007
framed under the Juvenile Justice (Care and Protection of
Children) Act, 2000, or under Section 94(2) of the Juvenile
Justice (Care and Protection of Children) Act, 2015, then such
documents would be enough for the Court’s prima facie
satisfaction. On the basis of these documents, a presumption of
juvenility can be drawn. The Court also emphasized that if age
determination is based on school records or similar evidence,
then such records must be considered in light of Section 35 of
the Indian Evidence Act. This is because public or official
records maintained in the discharge of official duty carry more
credibility compared to private documents.
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12. Further, the victim’s statement was not recorded
under Section 164 CrPC. While such statement recording is not
a legal sine qua non for conviction, but in cases hinging on the
victim’s version and hearsay narration to third parties, a
recorded statement serves as an assurance against tutoring and
embellishment. Its absence particularly when material witnesses
are withheld weakens the probative force of the prosecution
case.
13. On perusal of the record, it is evident that the
Investigating Officer (PW4) does not support the prosecution
version on material particulars. Initially, the case was instituted
on 11.12.2021 on the basis of the victim’s written complaint,
wherein offences under Sections 354, 447, 504 and 506 of the
IPC were registered. The Investigating Officer inspected the
place of occurrence, prepared a description of the house and
surroundings, and recorded statements of the victim, her
parents, and one Yogendra Tiwari, who supported the version of
the victim. Thereafter, the matter was transferred to the Mahila
Police Station, Bhojpur, for specialized investigation.
14. At Mahila Police Station, the statement of the
victim was formally recorded under Section 161 Cr.P.C and age
verification documents, including her birth certificate, Aadhaar
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card and school certificate, were collected. These documents
confirmed her minority, thereby attracting the provisions of the
POCSO Act. Though medical examination could have further
corroborated the allegation, the victim and her parents declined
medical testing. The Investigating Officer, therefore, proceeded
without medical evidence.
15. It further appears that during investigation,
certain contradictions came on record. The victim admitted that
she did not narrate the incident to anyone immediately and
certain material facts, such as the allegation that the accused
caught or pressed her down, did not find mention in the original
complaint. Similarly, her mother alleged that the accused
entered the house and misbehaved with the victim, whereas her
father stated only that the accused attempted to take political
advantage during election campaigning and did not specifically
narrate any misbehaviour. These inconsistencies were duly
noted by the Investigating Officer.
16. Nevertheless, after considering the evidence on
record, including the consistent portion of the victim’s
testimony, corroboration from her mother, proof of age, and
circumstances of the accused’s entry into the house, the
Investigating Officer formed an opinion that sufficient materials
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existed to proceed against the accused. Accordingly, charge
sheet was submitted on 31.03.2022 under Sections 354, 448,
504, 506 IPC and Section 8 of the POCSO Act. These
investigative lapses create a reasonable doubt which the
prosecution has failed to disprove.
17. Criminal charges must be proved beyond
reasonable doubt. Here, the withholding of material witnesses,
failure to prove age (thereby excluding POCSO), the absence of
a Section 164 statement, and the Investigating Officer’s non-
support cumulatively casts shadow of reasonable doubt on the
prosecution case. The omissions are not mere irregularities; they
are fatal defects depriving the Court of reliable and legally
admissible proof of the essential facts.
18. We find that the findings recorded by the learned
Trial Court do not suffer from any illegality and perversity. In a
criminal case, the identity of the accused is to be established, so
as to prove his guilt beyond the shadow of all reasonable doubts.
Wherever, any doubt is cast upon the case of the prosecution,
the accused is entitled to the benefit of doubt.
19. In criminal appeal against acquittal what the
Appellate Court has to examine is whether the finding of the
learned court below is perverse and prima facie illegal. Once the
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Appellate Court comes to the finding that the grounds on which
the judgment is based is not perverse, the scope of appeal
against acquittal is limited considering the fact that the legal
presumption about the innocence of the accused is further
strengthened by the finding of the Court. At this point, it is
imperative to consider the decision of the Hon’ble Supreme
Court in the case of Mrinal Das vs. State of Tripura reported in
(2011) 9 SCC 479, paragraphs 13 & 14 of which read as under:
“13. It is clear that in an appeal against
acquittal in the absence of perversity in the
judgment and order, interference by this Court
exercising its extraordinary jurisdiction, is not
warranted. However, if the appeal is heard by
an appellate court, it being the final court of
fact, is fully competent to reappreciate,
reconsider and review the evidence and take its
own decision. In other words, the law does not
prescribe any limitation, restriction or condition
on exercise of such power and the appellate
court is free to arrive at its own conclusion
keeping in mind that acquittal provides for
presumption in favour of the accused. The
presumption of innocence is available to the
person and in criminal jurisprudence every
person is presumed to be innocent unless he is
proved guilty by the competent court. If two
reasonable views are possible on the basis of the
evidence on record, the appellate court should
not disturb the findings of acquittal.
14.There is no limitation on the part of the
appellate court to review the evidence upon
which the order of acquittal is found and to
come to its own conclusion. The appellate court
can also review the conclusion arrived at by the
trial court with respect to both facts and law.
Patna High Court CR. APP (DB) No.598 of 2024 dt.18-08-2025
11/12While dealing with the appeal against acquittal
preferred by the State, it is the duty of the
appellate court to marshal the entire evidence
on record and only by giving cogent and
adequate reasons set aside the judgment of
acquittal. An order of acquittal is to be
interfered with only when there are “compelling
and substantial reasons” for doing so. If the
order is “clearly unreasonable”, it is a
compelling reason for interference……….”
20. In the case of Ghurey Lal versus State of Uttar
Pradesh reported in (2008) 10 SCC 450 in paragraph 75, the
Hon’ble Supreme Court reiterated the said view and observed as
under:
“75. The trial Court has the advantage of
watching the demeanour of the witnesses who
have given evidence, therefore, the appellate
court should be slow to interfere with the
decisions of the trial court. An acquittal by the
trial court should not be interfered with unless it
is totally perverse or wholly unsustainable.”
21. Thus, an order of acquittal is to be interfered with
only for compelling and substantial reasons. In case if the order
is clearly unreasonable, it is a compelling reason for
interference. But where there is no perversity in the finding of
the impugned judgment of acquittal, the Appellate Court must
not take a different view only because another view is possible.
It is because the learned Trial Court has the privilege of seeing
the demeanour of witnesses and, therefore, its decision must not
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be upset in absence of strong and compelling grounds.
22. In view of the above, we do not find any illegality
and perversity in the findings recorded by the Trial Court.
23. Accordingly, the present appeal is dismissed.
(Sudhir Singh, J)
(Alok Kumar Pandey, J)
Anushka/-
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