Patna High Court
Ajay Prasad vs The State Of Bihar on 23 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.846 of 2022
Arising Out of PS. Case No.-100 Year-2020 Thana- MAHILA P.S. District- Bhojpur
======================================================
Ajay Prasad, Son of Shiv Shankar Yadav, Resident of Village- Saharsa, P.S.-
Shor Bazar, District- Saharsa
... ... Appellant
Versus
1. The State of Bihar
2. D - Devi (Imaginary name of the informant), Wife of Manish Kumar,
Resident of Muffasil P.S., Q. No.1, P.S. - Arah, Nawada, District - Bhojpur.
Permanent Resident of Village - Tulli Bigaha, Post - Kobil, P.S. - Hulasganj,
District - Jehanabad
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Advocate
Mr. Mithilesh Kumar, Advocate
Mr. Krishna Kant Pandey, Advocate
For the Respondent/s : Mr. Bipin Kumar, 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 : 23-04-2025
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. This Court had issued notice to the informant-
respondent no. 2. Notice has been validly served.
Respondent no. 2 has entered appearance through her
Advocate but no one has appeared on her behalf to oppose
the appeal.
3. The present appeal has been preferred for setting
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
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aside the judgment of conviction dated 05.09.2022
(hereinafter referred to as the 'impugned judgment') and
the order of sentence dated 07.09.2022 (hereinafter referred
to as the 'impugned order') respectively, passed by learned
Additional Sessions Judge-VI cum Special Judge, POCSO,
Bhojpur, Ara (hereinafter referred to as the 'learned trial
Court') in POCSO Case No. 112 of 2020 arising out of Ara
Mahila P.S. Case No. 100/2020.
4. By the impugned judgment and order, the learned
trial court has been pleased to hold the appellant guilty for
the offences punishable under Sections 354B, 376A, 376B
of the Indian Penal Code (in short 'IPC') and under Section
'6' of the Protection of Children from Sexual Offences Act
(in short 'POCSO Act'). He has been ordered to undergo
rigorous imprisonment for three years with a fine of Rs.
5000/- under Section 354B of IPC and in default of
payment of fine, the appellant will be liable for rigorous
imprisonment for three months. He has been sentenced to
undergo rigorous imprisonment for 20 years and to pay fine
of Rs. 10,000/- under Section 376A and 376B of IPC and in
default of payment of fine, he shall be liable to undergo
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
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rigorous imprisonment for six months. He has also been
sentenced to undergo rigorous imprisonment for 20 years
and to pay fine of Rs.10,000/- under Section six of the
POCSO Act and in default of payment of fine, he shall be
liable for rigorous imprisonment for six months. All the
sentences have been ordered to run concurrently and the
period undergone has been directed to be set off from the
sentence awarded.
Prosecution Case
5. The prosecution story is based on a written report
submitted by the mother of the victim girl. In her written
application, she had alleged as under :-
"Her husband is posted as Bodyguard of Vice
Chancellor in the district of Bhojpur. On 21.12.2020 at
about 9:00 P.M., her daughter came very scared and told
that Ajay uncle, who lives in the same building took her on
the roof by alluring her and opened the zip of her pant. She
further stated that, Ajay uncle started licking her private part
and when she started crying, he slapped her twice but she
managed to escape anyhow. Informant having heard the
same got scared and went to the house of Ajay Prasad with
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other neighbours and when they reached there, Ajay
panicked and fled away after pushing the informant. The
informant informed the Station House Officer of Mahila
Police Station.
6. On the basis of the aforesaid written application,
Ara (Mahila) P.S. Case No. 100 of 2020 was registered
under Section 354B IPC and Section 6 of the POCSO Act
on 22.12.2020. It is worth mentioning that one Kanchan
Kumari (P.W.-4), who was posted as Officer In-charge of
the Ara Mahila Police Station at the relevant time,
registered the First Information Report (FIR). on
22.12.2020
at 00:30 hours and kept the investigation of the
case with herself.
7. After investigation, the Investigation Officer (P.W.-
4) submitted a chargesheet bearing no. 1 of 2021 dated
30.01.2021. The learned Special Judge, POCSO Act took
cognizance of the offences on 08.02.2021 under Sections
354B, 376(AB) of the IPC and Section 6 of the POCSO
Act. On 22.02.2021, the charges were framed against the
appellant after he was explained the charges but denied the
same and claimed to be tried.
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
8. In course of trial, the prosecution examined as
many as four witnesses and exhibited five documents to
prove the prosecution case. The list of the prosecution
witnesses, defence witnesses and the exhibits are being
shown hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Mother of the victim (Informant)
Hearsay witness
PW-2 Victim
PW-3 Father of the victim (Hearsay witness)
PW-4 Kanchan Kumari (Investigating Officer)
List of Defence Witnesses
DW-1 Brahmdeo Prasad Yadav
DW-2 Diwakar Kumar
List of Exhibits
Exhibit '1' Written report dated 21.12.2020 having
signature of PW-1 (Informant)
Exhibit '2' Signature of the informant on the
statement U/S 161 of Cr.P.C.
Exhibit '3' Signature of the victim on the statement
U/S 161 of Cr.P.C.
Exhibit '4' Statement U/S 164 of Cr.P.C.
Exhibit '5' Charge Sheet
9. The statement of the appellant was recorded under
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
Section 313 of the Cr.P.C. in which the appellant has stated
that he is innocent and has been falsely implicated in this
case by the husband of the informant because her husband
had a doubt that his wife is having an affair with him. The
appellant also made a statement that the husband had
assaulted him after consuming liquor.
10. On behalf of the defence, two defence witnesses,
namely, Brahmadeo Prasad Yadav, (D.W.-1) and Diwakar
Kumar (D.W.-2) have been examined. D.W.-1 is the Sub-
Inspector of police posted in the S.P. Office, Rohtas
whereas D.W.2 is the brother-in-law of the appellant, who
has claimed to be present on the date and time of the
occurrence in the quarter of his sister.
Finding of the Learned Trial Court
11. The learned trial court having analyzed the
evidences on the record reached to a conclusion that the
prosecution has been able to prove the guilt of the accused-
appellant beyond all reasonable doubt, hence, he is liable to
be convicted for the offences, as stated hereinabove.
12. The learned trial court has refused to discard the
evidence of the mother (P.W.1) and the father (P.W.3) of the
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
victim. The contention of the defence that their statements
are full of contradictions and do not inspire confidence has
been rejected. The learned trial court has taken a view that
for minor discrepancies in the evidence of the prosecution
witnesses, their evidences cannot be discarded only because
they happened to be a related and interested witnesses.
Submission on behalf of the Appellant
13. Learned counsel for the appellant submits that the
allegation against the appellant of licking the private part of
the victim, could have been proved by Medical/Scientific
Test, but admittedly, the victim of the case has not been
medically examined, nor any scientific test has been carried
out to prove that the appellant's saliva or spittle was there
on the person of the victim. Even the pant of the victim was
not handed over to the Police, what is revealed from the
Paragraph '36' of the evidence of informant/mother of the
victim.
14. Learned counsel submits that the testimony of the
victim, who was just a six years old child has not been
corroborated by any medical/scientific test. It is well settled
that the evidence of the child witness must be evaluated
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
carefully as the child may be swayed by what other tell
him/her and he/she is an easy prey to tutor. Therefore, the
evidence of a child witness must find adequate
corroboration before it can be relied upon. It is more a rule
of practical wisdom than the law. Learned counsel has
placed reliance on the judgment of the Hon'ble Supreme
Court in the case of Digamber Vaishnav and Another vs
State of Chhatisgarh reported in (2019) 4 SCC 522.
15. Learned counsel submits that the FIR was not
lodged on the basis of the fardbeyan of the victim, nor it
was registered with the Muffasil P.S, which is admittedly
situated in the same premises where the place of occurrence
is situated, rather the FIR was registered after calling
telephonically a Police officer/P.W.-4 from Mahila Police
Station, who even after an interaction with the victim, asked
the informant's father to give a written report and thereafter,
only the informant gave the written report which was
written by her husband, this goes to show that the initial
statement of the victim was not allowed to see the light of
the day. Learned counsel submits that in such circumstance,
there is a reasonable probability and possibility that the
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
victim (P.W.-2) might have been tutored and thus, the
testimony of PW-2 cannot be safely relied upon without
corroboration with any medical or scientific test report.
16. Learned counsel further submits that the
prosecution has not proved any electronic evidence or any
audio or video footage with regard to the recording of
statement of the victim in view of Section 26(4) of the
POCSO Act, which would prove fatal to the prosecution's
case.
17. Learned counsel submits that the informant has
stated in the FIR that after coming to know about the
incident from the victim, she went to the appellant's home
along with the people of the vicinity. In Paragraph '7' of her
evidence, she has stated that when she had gone to the room
of appellant for enquiry then he denied of committing any
offence and when some people started gathering, he ran
away through the stairs, but no neighbour or independent
witness has been examined on behalf of the prosecution. In
Paragraph '38' of her evidence, the informant has admitted
that, no one from the "Building" has been made witness in
the case whereas PW-3 in paragraph '27' of his evidence
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
has stated that, out of 12 flats, in 5 flats the family of
Constables had been residing. PW-3 had also taken the
name of a Sepoy, namely, Banti Kumar and his wife,
namely, Reshmi Kumari, who used to stay in Flat No. 10.
Thus, non- examination of any independent witness from
the building casts serious aspersion over the prosecution
case and it appears that the prosecution has deliberately
chosen not to examine the independent witnesses to hide the
real state of thing.
18. Learned counsel submits that the informant in
paragraph '5' of her evidence has stated that when her
daughter was playing on the stairs, she was taken by the
appellant at the terrace but the victim (PW-2) in reply to
question No. 3 in her evidence as well as husband of the
informant (PW-3), in paragraph '6' of his evidence have
stated that the victim had gone to appellant's quarter for
taking mobile charger. Though, both the stories appear to be
contradictory, but in both the eventualities, there was no
occasion for the appellant to take the victim to the terrace,
especially when his quarter was at the top floor and there
was none as per the prosecution story.
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
19. Learned counsel submits that the informant in
paragraph '8' of her evidence has stated that the father of
victim had made call to the Mahila Police Station,
accordingly, the police came and took the statement of the
victim, thereafter, on being asked by Kanchan Madam
(I.O./PW4), the written report was given to the Mahila
Police Station which was written by the informant's
husband but signed by the informant, whereas PW 3
(Husband of the informant) has stated in his evidence
(Paragraph '14') that Muffasil Police Station is in the same
premise where his quarter is situated and he had informed at
the Muffasil Police Station about the incident. In Paragraph
19 of his evidence, he has stated that he did not desire any
case to be lodged at the Muffasil Police Station. In
Paragraphs '9' and '20' of his evidence, he has stated to
have informed to the Mahila Police Station telephonically
about the incident. Mahila Police took the statement of the
victim and thereafter, asked him to give a written report.
Accordingly, PW-3 gave a written report having signed over
the same as the writer of the written report but neither such
written report signed by the PW-3 nor any such telephonic
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
information given by PW-3 to the Police Station has been
shown to have been reduced into writing and thus, the
written report appears to be a post investigation document
which was prepared with due deliberation, discussion and
afterthought and hit by Section 162 of Cr.P.C. Learned
counsel has relied upon the judgment of Hon'ble Supreme
Court in the case of Allarakha Habib Memon and Others
versus State of Gujarat reported in (2024) 9 SCC 546.
20. Learned counsel submits that the informant has
stated in the FIR as well as in her evidence that her daughter
has narrated the incident to her and thereafter, the informant
went to the room of Ajay Kumar, but the victim in reply of
question No. 4, has stated about narrating the incident to her
father and thereafter of taking the appellant by her father to
Police Station.
21. In Paragraph 21 of her evidence, the victim has
stated that appellant had given the charger in her hand. She
has also stated in Paragraph 20 of her evidence that when
she was being taken to the terrace, she was weeping, she
has also stated in Paragraph 24 of her evidence that when
her father caught the appellant to take to the Police Station,
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
the appellant was sitting in his room whereas in Paragraph
'35' of her evidence, she has admitted to have stated to the
Police that when her parents along with other persons of the
building went to the residence of the appellant, the appellant
fled away having dashed her father, which all appear to be
contradictory, developed, after thought and as such, the PW
2 (victim) doesn't appear to be 'sterling witness'. Learned
counsel has relied upon the judgment of the Hon'ble
Supreme Court in the case of Rai Sandeep vs State (NCT
of Delhi) reported in (2012) 8 SCC 21.
22. Learned counsel submits that PW-3 in Paragraph
'54' of his evidence has stated that the swelling on the face
of the appellant occurred on account of his fall on the stairs,
which has not been stated at any early occasion by any of
the witnesses which goes to show, they all tried to conceal
the fact of sustaining injury by the appellant on his person,
though, the injuries over the person of the appellant
supports the defence version that, the appellant had been
assaulted by PW 3 and thereafter, the appellant has been
implicated in the present false case. Even the I.O in
Paragraph '24' of her evidence has admitted that the
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
appellant was in injured condition at the time of his arrest
and in Paragraph '34' of her evidence, the I.O. (PW-4) has
stated that the husband of the informant had done "Marpit"
with the appellant which made him injured.
23. Learned counsel submits that the I.O. (PW-4) in
her evidence has stated that the informant had come with
the written report to her on 22.12.2020 at about 00:30 hours
along with her husband. In Paragraph '14' of her evidence,
she has admitted her prior acquaintance with the father of
the victim (P.W.-3). In Paragraph 15 of her evidence, she
has stated that she has not recorded the statement of any of
the Police Staff of Muffasil police Station In Paragraph 17
of her evidence, she has stated that, she has not recorded the
statement of any of the witnesses, who reside in the four
sides of the place of occurrence, which clearly indicates that
on account of prior acquaintance with the husband of the
informant, the I.O. also didn't allow the real state of thing to
come into light and probably for this reason, the informant's
husband (PW-3) didn't allow the registration of the FIR at
Muffasil Police Station and made wait to the PW 4 to come
at Muffasil Police Station to give the written report which
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
as per the PW-1 (Informant) was given to the PW-4 at
Muffasil Police Station whereas PW-4 claims to have
received the written report at 12:30 AM, when the
informant came to her with her husband.
24. Learned counsel submits that the I.O (PW 4), in
Paragraph 16 of her evidence has stated to have visited the
place of occurrence at 01:30 AM, (though, not mentioned in
the Case Diary) and in Paragraph 18 of her evidence, she
has stated to apprehend the appellant with the help of other
police force while fleeing from the Sepoy Family quarter,
which is contrary to the evidence of PW 2 and PW 3, who
have stated that the appellant was caught, detained and
produced by PW-2.
25. Learned counsel submits that the I.O. has
admitted in Paragraph '21' of her evidence that the Medical
Test of the appellant was not carried out and there is nothing
on record to show that the Medical Examination of the
appellant was done in view of Section 53A of the Cr.P.C. It
is pointed out that non-examination of appellant,
particularly, for the purpose of DNA Test can be considered
to be fatal for the prosecution. Learned counsel has placed
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
reliance on the judgment of the Hon'ble Supreme Court
Court in the case of Chhotkau vs The State of Uttar
Pradesh reported in 2022 0 AIR (SC) 4688 (paragraphs
72 to 78).
26. Learned counsel submits that the IO in Paragraph
41, 42, 43 and 44 of her evidence has admitted overwriting
at several places in the Case Diary, which clearly indicates
tainted investigation. In Paragraphs 47, 48 and 49 of her
evidence, the IO (PW 4) has contradicted the statement of
the victim which clearly shows that PW 2, victim is not
consistent. Further, she has contradicted the evidence of
PW-3 also.
27. Learned counsel submits that the I.O. (PW-4) in
Paragraph '50' of her evidence has clearly stated that she
has not got the victim medically examined. The
prosecution, especially the I.O. has not followed the
instruction of the Ministry of Home Affairs with regard to
mandatory action by the Police in cases in crime against the
women, inasmuch as no effort has been taken by the I.O. to
collect and preserve the Forensic evidence which was
essentially required in the present case. [Reference can be
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
made to the Letter dated 05.10.2020 issued by the Under
Secretary to the Government of India and Letter dated
09.10.2020 of Deputy Secretary to the Government of
India, Ministry of Home Affairs, (Women Safety Division)]
28. Learned counsel submits that the presumption
under Section 29 of POCSO Act is rebuttable in law.
Presumptions are bad in law; they fly in twilight but vanish
in the light of facts. The statutory presumption would stand
activated only if the prosecution proves the foundational
facts, and then, even if the statutory presumption is
activated, the burden on the accused is not to rebut the
presumption beyond reasonable doubt. Suffice it if the
accused is in a position to create a serious doubt on veracity
of the prosecution case. Learned counsel has placed reliance
on the judgment of the Hon'ble Supreme Court in the case
of Navin Dhaniram Baraiye Vs. State of Maharastra,
reported in 2018 2 AIR (Bom) (R) (Cri) 897.
29. Learned counsel submits that the prosecution
witnesses are not trustworthy and they have given
contradictory evidence having several discrepancies and
their evidence have not been corroborated by reliable
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
evidence or material.
30. Learned counsel submits that the learned court
below has wrongly convicted and sentenced the appellant
merely on surmises and conjecture and without there being
sufficient, cogent and reliable evidence.
31. There is no legal, cogent, reliable and sufficient
evidence to prove the charges levelled against the appellant
and to justify the appellant's conviction and sentence and
the prosecution has failed to prove its case beyond shadow
of all the reasonable doubts.
Submissions on behalf of the State
32. Mr. Bipin Kumar, learned Additional Public
Prosecutor for the State has opposed the appeal. It is
submitted that the victim girl (P.W.-2) is a child witness but
she has been found to be a competent witness in this case in
the preliminary examination conducted by the learned trial
Court. Her testimony stands corroborated by the evidence
of her mother (P.W.-1) and father (P.W.-3) who are, though,
not the eye witnesses to the occurrence but have deposed as
to immediate circumstances which were present just after
the occurrence.
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
33. Learned Additional Public Prosecutor further
submits that there may be some minor discrepancy in the
evidence of the prosecution witnesses with regard to the
time of recording of the statement of the victim and non-
recording of certain dates and times in the case diary by the
Investigating Officer (P.W.4) but the totality of the
prosecution case has to be judged on the basis of the entire
evidences and the case has to be decided on the basis of
broad probability of the case.
Consideration
34. We have heard learned counsel for the appellant
and learned Additional Public Prosecutor for the State as
also perused the trial Court records.
35. This Court finds that the whole prosecution case
with regard to the alleged occurrence depends upon the
evidence of the victim, who has been examined as (P.W.2).
She was just six years old child, therefore, this Court is
required to keep in its mind that while appreciating the
evidences of the child witness, the court must look into the
same with all circumspection and care. The court is required
to examine as to whether there is any tutoring of the child
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
witness. Although, it is not a rule of law that a conviction
cannot take place on the basis of the evidence of a child
witness but at the same time, it is well settled that the
evidence of a child witness must get corroboration from
independent material particulars unless the evidence is of
such a quality that the child witness may be placed in the
category of a 'sterling witness'.
36. We find from the records that the written
application giving rise to the present case has not been
marked exhibit. The prosecution has only proved the
signature of P.W.1 on the written application which has
been marked as Ext-1. Despite this, the learned trial court
has treated the written application itself in evidence. If we go
through the written application, it is found that the husband
of the informant was posted as a 'Body Guard' with the
Vice Chancellor being a member of the Bhojpur District
Police Force. According to the informant, on 21.12.2020 at
about 9:00 P.M., her daughter (P.W.2) came in a frightened
condition and told her that the appellant, who is living in the
same building, had allured her and had taken her at the
room of the house where he opened her pant and then
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
started licking her private part on which she shouted then he
gave her two slaps. She somehow came running to her
house. The informant alleged that after hearing it, she got
disturbed and then along with the neighbors, she went to
the house of the appellant but the appellant pushed them
and fled towards the ground. She claimed to have informed
Officer-In-charge of Mahila Police Station. In course of
trial, no independent witness/neighbour of the informant
has come forward to support the prosecution case. In fact,
the Investigation Officer (P.W.4) has clearly stated in her
deposition that she had not recorded the statement of the
neighbours. In paragraph-17 of her deposition she has stated
that she had not recorded statement of any of the persons
whose house is near the place of occurrence. Thus, the fact
that after the occurrence, the informant had gone with the
neighbours to the house of the appellant and then appellant
had pushed them and fled towards the ground has not been
proved in course of trial.
Change in the statement in course of trial
37. The informant has claimed in her deposition that
she had informed the officer in-charge of the Mahila Police
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
Station but in course of trial, she has stated in paragraph-'8'
of her deposition that father of the victim girl had made a
telephone call to Mahila Police Station whereafter police
came and recorded the statement of the victim girl. This
Court not only finds that the informant has deviated from
her statement made in the written application with regard to
the information given to Mahila Police Station, she has also
stated that police had recorded the statement of the victim
but this statement of the victim has been suppressed by the
prosecution.
38. This Court finds that according to the informant
(P.W.1), she had submitted an application through the
Investigating Officer (P.W.4) which was written by her
husband, on which she had put her signature. The
Investigating Officer (P.W.4) has stated in her deposition
that the father of the victim (P.W.3) was known to her from
before. She has also stated that the informant had come with
her husband and she had recorded the re-statement of the
informant at the police station itself but she had not
recorded the statement of her husband at that time. The fact
that the Investigating Officer had not recorded the statement
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
of the husband of the informant even though she claims that
he was present with the informant in the police station is to
be considered in the light of the suggestion of the defence
that when the Investigating Officer went to the place of
occurrence, the husband of the informant was not with her
because he was in a heavily drunken condition and for this
reason, the Investigating Officer could not record his
statement at that time.
39. To this Court, it appears questionable as to why the
Investigating Officer (P.W.4) did not record the statement
of the husband of the informant, if he was present in the
Police Station, the fact that husband of the informant though
wrote a long drawn application but did not put his signature
on the application either as informant or a witness. Only
strengthen the belief of this Court that the husband of the
informant was using his acquaintance with the I.O. (P.W.4)
from behind the curtain.
40. This Court further finds that the Investigating
Officer (P.W.4) has stated in paragraph '34' of her
deposition that husband of the informant had assaulted the
accused as a result whereof the accused was found injured.
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
If it was so a case of causing assault should have been
registered by the I.O. and it was required to be investigated.
The prosecution has not explained the injuries found on the
body of the accused-appellant. The conduct of the
Investigating Officer (P.W.4) is required to be noted for the
reason that she neither sent the victim girl (P.W.2) for
medical examination nor she produced the accused-
appellant for his medical examination, even though, she had
found the accused-appellant in injured condition.
41. The Investigating Officer (P.W.4) has repeatedly
stated that she had caught the accused but admits not in the
case diary, she had not mentioned about preparation of
arrest memo. She had also not mentioned that information
with respect to arrest of the accused was given to her family
members and she had not written in the case diary that at
which place the accused was arrested.
42. The evidence of the Investigating Officer (P.W.4)
with regard to the arrest of the accused is also required to be
closely examined with reference to the evidence of the
father of the victim who has been examined as P.W.3. He
has stated in his deposition that when the accused was
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
trying to flee away from his quarter after pushing them, he
chased him and apprehended him whereafter he gave
information to Mahila Police Station. He has further stated
that he had kept the accused in Muffasil Police Station till
the time 'mahila' police did not arrive. It is evident from the
deposition of P.W.3 and P.W.4 that they are making
completely contradictory statements with regard to the
manner in which the accused-appellant was arrested. It has
come in evidence that after the arrival of the police within
20 minutes from Mahila Police Station, the statement of the
victim girl was recorded and thereafter, Investigating
Officer told P.W.3 to submit a written application, later on
he wrote the application which P.W.3 claims to have written
as stated by his daughter.
43. The submission of the defence that P.W.3 & 4
were well known to each other, therefore, they were acting
hands in glove and P.W. 4 was helping P.W.3 in falsely
implicating the appellant cannot be thrown out. The conduct
of the Investigating Officer (P.W.4) and the vaccilitating
statement of the P.W.3 & 4 as also the suppression of the
first statement of the victim are some of the circumstances
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
creating a huge doubt over the prosecution case.
44. This Court further finds that P.W.1, who is the
mother of the victim, has stated in her deposition that the
victim was playing at the stairs when the appellant had
taken her to the roof of the house and committed the wrong
act with her. Contrary to this, the definite stand of P.W.2,
who is the victim girl is that her father told her to bring
charger from the house of the appellant and for that she had
gone there and when she was coming down from stairs, the
appellant took her to roof of the house where he committed
the wrong act.
45. P.W. 3 has also tried to support P.W.2 on this
point saying that the appellant had borrowed the charger
and he had sent his daughter to bring back that but it has
come in evidence of the Investigating Officer (P.W.4) that
P.W.3 had not stated before her (P.W.4) in course of
investigation that in the morning, the appellant had
borrowed his charger and when he searched the charger, his
wife told that the appellant had not returned the same and
then P.W.3 told the victim to bring back the charger from
the house of the appellant. It is, thus, evident that the story
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
that the victim was sent to bring back the charger from the
house of the appellant has been contradicted by the
Investigating Officer (P.W.4) and the story developed at a
belated stage by the prosecution has lost its credibility.
Initially it was stated that the victim was playing from
where the appellant allured her and took her to the roof of
the house. What kind of allurement was given has not
surfaced in the evidence. A complete changed version of the
victim going to bring back the charger has been introduced
which would not inspire confidence of this Court. There is
no investigation on the point that the accused and P.W.3
were using similar kind of mobile and charger. The so-
called charger was not seized by I.O. (P.W.-4).
46. This Court further finds that the Investigating
Officer (P.W.4) was suggested by the defence that P.W. 3,
who is the husband of the informant had committed assault
on the accused in a drunken condition and had injured him
and thereafter, in order to save himself, he in collusion with
the Investigating Officer (P.W.4), registered a false case
through his wife (P.W.1). The Investigating Officer (P.W.4)
has, though, denied the suggestion but the fact remains that
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
she has admitted in paragraph '34' of her deposition that the
appellant was assaulted by the husband of the informant, as
a result whereof, he had suffered injuries. To that extent the
denial of the suggestion of the defence by the Investigating
Officer (P.W.4) would not carry much confidence of this
Court. Despite this information neither any F.I.R. was
registered nor any effort was taken to arrest P.W.3 who had
assaulted the accused-appellant.
47. The conduct of the Investigating Officer (P.W. 4)
may also be found from the fact that the Investigating
Officer had not recorded the statement of any police
officer or Sepoy of Muffasil Police Station even though
P.W. 3 has categorically stated in his deposition that he had
apprehended the appellant and had kept him in Mahila
Police Station till the time police arrived from Mahila
Police Station . It is evident that the prosecution in this case
is not coming clean and the evidences of P.Ws. 1, 2, 3 & 4
are not inspiring.
48. Apart from the aforementioned materials which
this Court has noticed, it is also found that because the
Investigating Officer (P.W. 4) did not send the victim girl
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
for medical examination, no scientific test could be
conducted to find out as to whether the victim was
subjected to any alleged act.
49. Learned counsel for the appellant has placed
before us a circular letter issued by the Government of
India, Ministry of Home Affairs (Womens Safety Division),
New Delhi dated 9th of October, 2020 addressed to all the
Chief Secretaries/Advisors to Administrators (All States and
UTs) which contains guidelines as to the mandatory action
by police in cases of crime against women. Paragraph '2' of
the said letter is being reproduced hereunder for a ready
reference:-
" 2. It is again brought to your attention that
criminal laws relating to sexual offences against
women provide, interalia, for the following
actions to be taken by the Police in such cases:
(i) Compulsory registration of FIR in case of
cognizable offence under sub-section (1) of
section 154 of the Code of Criminal Procedure,
1973 (Cr.PC). The law also enables the police to
register FIR or a "Zero FIR" (in case the crime is
committed outside the jurisdiction of police
station) in the event of receipt of information on
commission of a cognizable offence, which
includes cases of sexual assault on women.
(ii) Section 166 A(c) of the Indian Penal Code
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
1860 (IPC) provides for punishment to a public
servant for failure to record FIR in relation to
cognizable offences punishable under section
326A, Section 326B, Section 354, Section
354(B), Section 370, Section 370A, Section 376,
Section 376A, Section 376AB, Section 376B,
Section 376C, Section 376D, Section 376DA,
Section 376DB, Section 376E or Section 509 in
IPC.
(iii) Section 173 of Cr.PC provides for
completion of police investigation in relation to
rape in two months. In order to facilitate the State
police to monitor compliance, in this regard MHA
has provided an online portal called Investigation
Tracking System for Sexual Offences (ITSSO)
for monitoring the same. This is available
exclusively to law enforcement officers.
(iv) Section 164-A of CrPC provides that in
rape/sexual assault investigation the victim shall
be got examined by a registered medical
practitioner under consent within twenty-four
hours from the time of receiving the information
relating to the commission of such offence.
(v) Section 32 (1) of the Indian Evidence Act,
1872, provides that the statement, written or
verbal, by a person who is dead shall be treated as
relevant fact in the investigation when the
statement is made by a person as to the cause of
his death, or as to any of the circumstances of the
transaction which resulted in his death. Hon'ble
Supreme Court in its order dated 7th January
2020, in the matter of Criminal Appeal Nos. 194-
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
195 of 2012 in the case of Purshottam Chopra
& Anr. v. State (Govt. of NCT Delhi), directed
that a particular statement, when being offered as
dying declaration and satisfies all the
requirements of judicial scrutiny, cannot be
discarded merely because it has not been
recorded by a Magistrate or that the police officer
did not obtain attestation by any person present at
the time of making of the statement.
(vi). The Directorate of Forensic Science
Services (DFSS) under the MHA has issued
Guidelines for collection, preservation &
transportation of forensic evidence in sexual
assault cases for Investigation Officers and
Medical Officers. In order to facilitate the State
Police, Bureau of Police Research and
Development (BPR&D) has issued Sexual
Assault Evidence Collection (SAEC) Kits to
every State/UT. It is necessary to use these SAEC
kits in every case of sexual assault reported.
MHA advisory dated 5th October 2020 in this
matter may be referred. BPR&D and LNJN
National Institute of Criminology and Forensic
Sciences (NICFS) have been regularly
conducting Training and Training of Trainers
(TOT) programmes on procedure for collection,
preservation and handling of forensic evidence
for Police/Prosecutors and Medical Officers
respectively".
50. This Court is, therefore, left with a situation
where there is a mere statement of the victim aged about 6
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
years in course of trial, whose first statement made before
the police which could have been basis of lodging the F.I.R.
has not been recorded, therefore, what was her first version
has not been brought on record in this case. The chances of
tutoring of the victim girl (P.W.2) aged about 6-7 years are
present as the prosecution seems to be indulging in
suppressing her statements. The statements of the mother
and father of the victim are changing on material aspects of
the matter, they are not coherent and in fact, some of their
statements with regard to the arrest of the accused-appellant
are highly contradictory when compared with the statement
of the Investigating Officer (P.W.4).
51. This Court has already noticed that on the one
hand, the husband of the informant wrote a long drawn
written application at the instance of the Investigating
Officer (P.W.4) but at the same time, he did not sign the
same and left it for his wife to put her signature and if this
circumstance is considered together with the fact that the
Investigating Officer (P.W.4) has stated that P.W.3 was
present in the police station but she had not recorded his
statement at that time, it would lead to conclude that the
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
Investigating Officer (P.W.4) is making a false statement to
this effect and the Court cannot believe the presence of
P.W.3 in Muffasil Police Station or Mahila Police Station at
the time of lodging of the FIR.
52. This Court finds much weight in the argument of
learned counsel for the appellant that the Investigating
Officer (P.W. 4) and the husband of the informant (P.W.3)
seem to be in collusion and the case was lodged by P.W.4
but purposely no medical examination either of the victim
or of the accused was conducted. P.W. 4 had not even issued
any requisition for medical examination of the victim and
the accused. It is not her statement that P.W.2 and her
parents (P.W.1 & P.W. 3) did not give their consent for
medical examination. This Court would draw an adverse
inference on this point.
53. For the reasons stated hereinabove, we find that
the judgment of the learned trial Court is not based on
cogent appreciation of the materials on the record. The
impugned judgment and order dated 05.09.2022 and
07.09.2022 respectively are set aside finding that the
prosecution has failed to establish the charges by leading
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
reliable evidence.
54. The conduct of the I.O. (P.W.4) has been found
blame-worthy. We are acquitting the appellant for the
reasons already discussed hereinabove. The conduct of the
I.O. (P.W. 4) has been noticed by this Court in various
paragraphs of the judgment hereinabove. At this Stage, we
are reminded of the judgment of Hon'ble Supreme Court in
the case of State of Gujarat Vs. Kishanbhai reported in
2014 (5) SCC 108. Paragraphs 19, 22 and 23 of the
judgment are being quoted hereunder for a ready reference.
"19. Every time there is an acquittal, the
consequences are just the same, as have been
noticed hereinabove. The purpose of justice has not
been achieved. There is also another side to be
taken into consideration. We have declared the
respondent-accused innocent, by upholding the
order of the High Court, giving him the benefit of
doubt. He may be truly innocent, or he may have
succeeded because of the lapses committed by the
investigating/prosecuting teams. If he has escaped,
despite being guilty, the investigating and the
prosecution agencies must be deemed to have
seriously messed it all up. And if the accused was
wrongfully prosecuted, his suffering is
unfathomable. Here also, the investigating and
prosecuting agencies are blameworthy. It is
therefore necessary, not to overlook even the
hardship suffered by the accused, first during the
trial of the case, and then at the appellate stages. An
innocent person does not deserve to suffer the
turmoil of a long-drawn litigation, spanning over a
decade or more. The expenses incurred by an
accused in his defence can dry up all his financial
resources -- ancestral or personal. Criminal
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
litigation could also ordinarily involve financial
borrowings. An accused can be expected to be
under a financial debt, by the time his ordeal is
over.
22. Every acquittal should be understood as a
failure of the justice delivery system, in serving
the cause of justice. Likewise, every acquittal
should ordinarily lead to the inference, that an
innocent person was wrongfully prosecuted. It is
therefore essential that every State should put in
place a procedural mechanism which would
ensure tha2. Every acquittal should be understood
as a failure of the justice delivery system, in
serving the cause of justice. Likewise, every
acquittal should ordinarily lead to the inference,
that an innocent person was wrongful of interest
of those who are innocent. In furtherance of the
above purpose, it is considered essential to direct
the Home Department of every State to examine
all orders of acquittal and to record reasons for the
failure of each prosecution case. A Standing
Committee of senior officers of the police and
prosecution departments should be vested with the
aforesaid responsibility. The consideration at the
hands of the above Committee, should be utilised
for crystallising mistakes committed during
investigation, and/or prosecution, or both. The
Home Department of every State Government will
incorporate in its existing training programmes for
junior investigation/prosecution officials course-
content drawn from the above consideration. The
same should also constitute course-content of
refresher training programmes for senior
investigating/prosecuting officials. The above
responsibility for preparing training programmes
for officials should be vested in the same
Committee of senior officers referred to above.
Judgments like the one in hand (depicting more
than ten glaring lapses in the
investigation/prosecution of the case), and similar
other judgments, may also be added to the training
programmes. The course-content will be reviewed
by the above Committee annually, on the basis of
fresh inputs, including emerging scientific tools of
investigation, judgments of courts, and on the
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
basis of experiences gained by the Standing
Committee while examining failures, in
unsuccessful prosecution of cases. We further
direct, that the above training programme be put
in place within 6 months. This would ensure that
those persons who handle sensitive matters
concerning investigation/prosecution are fully
trained to handle the same. Thereupon, if any
lapses are committed by them, they would not be
able to feign innocence when they are made liable
to suffer departmental action for their lapses.
23. On the culmination of a criminal case in
acquittal, the investigating/prosecuting official(s)
concerned responsible for such acquittal must
necessarily be identified. A finding needs to be
recorded in each case, whether the lapse was
innocent or blameworthy. Each erring officer
must suffer the consequences of his lapse, by
appropriate departmental action, whenever called
for. Taking into consideration the seriousness of
the matter, the official concerned may be
withdrawn from investigative responsibilities,
permanently or temporarily, depending purely on
his culpability. We also feel compelled to require
the adoption of some indispensable measures,
which may reduce the malady suffered by parties
on both sides of criminal litigation. Accordingly,
we direct the Home Department of every State
Government to formulate a procedure for taking
action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers
identified, as responsible for failure of a
prosecution case, on account of sheer negligence
or because of culpable lapses, must suffer
departmental action. The above mechanism
formulated would infuse seriousness in the
performance of investigating and prosecuting
duties, and would ensure that investigation and
prosecution are purposeful and decisive. The
instant direction shall also be given effect to
within 6 months.
(underline is mine)
55. In our considered opinion, this is one of those
Patna High Court CR. APP (DB) No.846 of 2022 dt.23-04-2025
cases in which the copy of this judgment is required to be
transmitted by the Registry of this Court to the Home
Secretary, Government of Bihar within a period of one
week from the date of receipt/communication of a copy of
this judgment. The Department of Home, Government of
Bihar shall identify the erring officer in the instant case and
will take appropriate action in accordance with the
established procedure of law.
56. In result, this appeal is allowed.
57. The appellant is said to be in custody. He shall be
released forthwith, if not wanted in any other case.
58. The trial Court records with a copy of the judgment
be sent down to the learned trial Court.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
Jagdish/lata/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 29.04.2025
Transmission Date 29.04.2025
