Patna High Court
Suman Kumari vs The State Of Bihar on 30 April, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.357 of 2025
Arising Out of PS. Case No.-14 Year-2023 Thana- MAHILA P.S. District- Vaishali
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Suman Kumari D/O Asrfi Rai @ Asharfi Ray R/O Vill.- Hasan Sarae,
Vaishali, P.S.- Baligaon, Dist.- Vaishali,
... ... Appellant/s
Versus
1. The State of Bihar
2. Nitish Kumar S/O Ram Kumar Ray R/O Vill.- Hasan Sarai, P.S.- Baligaon,
Dist.- Vaishali,
... ... Respondent/s
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Appearance :
For the Appellant : Mr. Hemant Ray, Advocate
Mr. Sharad Kumar Verma, Advocate
For the State : Mr. Abhimanyu Sharma, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 30-04-2025
Heard Mr. Hemant Ray, learned counsel for the
appellant/victim assisted by Mr. Sharad Kumar Verma and Mr.
Abhimanyu Sharma, learned A.P.P. for the Respondent-State.
2. The appellant is the victim who has preferred the
present appeal under provision of Section 413 of the Bhartiya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred as
'B.N.S.S.') against part judgment of acquittal dated 09.01.2025
and order of acquittal dated 13.01.2025 passed by the learned
District & Additional Sessions Judge-I, Vaishali at Hajipur in
Sessions Trial No. 293 of 2024, arising out of Mahila P.S. Case
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
2/18
No. 14 of 2023 dated 20.05.2023, whereby the respondent-accused
has been acquitted qua the offence punishable under Sections 376,
504 & 506 of I.P.C.
3. Learned counsel for the appellant/victim would mainly
contend that the victim has filed the written complaint on 20 th May,
2023 against the present respondent-accused in which the victim has
specifically stated that in course of going to and coming from
school/college, she met Nitish Kumar (respondent-accused) and they
developed friendship. The appellant was the student of LKBD
College and 8 months prior to lodging of this case, Nitish Kumar
tried to pressurize her for establishing physical relationship with him
and when she refused to do so, he started threatening her. Further, on
23.10.2022
at about 07:00 a.m. in the morning, Nitish Kumar called
the appellant/victim to meet at Government High School situated
near her house and when she went there, Nitish Kumar forcibly
committed rape on her on the point of pistol and made her sign on a
blank stamp paper and further threatened to kill her and all her family
members if she revealed the matter to anyone. It is also stated that
Nitish Kumar also took videos and photographs through his mobile
phone at the time of committing rape and threatened her to make the
same viral if she disclosed it to anyone. At the same time, the father
of the victim finalized the marriage with Rahul Kumar. Then, Nitish
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
Kumar sent her photo and video by editing the same on the mobile of
her brother and the mobile number of the prospective groom's side
due to which her marriage was cancelled. It is further stated that
Nitish Kumar also demanded ₹ 2 lakhs from the victim for deleting
the photographs and video.
4. It is further contended that, after the registration of the
F.I.R., the investigating agency carried out the investigation and,
during the course of the investigation, the investigating officer
collected the relevant material/evidence and also recorded the
statement of the witnesses. Prior to that, statement of the victim
under Section 164 of the Code of Criminal Procedure, 1973
(hereinafter referred as the 'Code') was also recorded.
5. Thereafter, investigating officer filed the charge-sheet
against the accused and, as the case was exclusively triable by the
Court of Sessions, the case was committed to the Sessions Court.
Before the Trial Court, the case was registered as Sessions Trial No.
293 of 2024. During the course of the trial, the prosecution examined
6 witnesses and also produced the documentary evidence. Thereafter,
the statement of the accused under Section 313 of the Code came to
be recorded. However, the Trial Court acquitted the respondent No. 2
herein qua offence punishable under Sections 376, 504 & 506 of
I.P.C. However, the said respondent has been convicted for
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
committing the offence punishable under Sections 67 & 67A of the
IT Act. It is further submitted that as the respondent-accused has
undergone the sentence of 1 year, 2 months and 18 days during the
investigation and trial, no further sentence was awarded to him.
Learned counsel, therefore, urged that the victim has preferred the
present appeal against the order of acquittal passed by the Trial Court
so far as the aforesaid offences under I.P.C. are concerned.
6. Learned counsel for the appellant/victim has supplied
the copy of the F.I.R. as well as the deposition of the prosecution
witnesses and the other evidence. Learned counsel referred the same.
Thereafter, he would mainly contend that though there is a delay in
lodging the F.I.R., the explanation has been given by the informant
for not filing the complaint against the respondent-accused
immediately. It is further submitted that the statement of the victim
under Section 164 of the Code was also recorded and, before the
Court, the victim (PW-5) has supported the case of the prosecution,
despite which the Trial Court has discarded her deposition. It is
further submitted that even the investigating officer has also
specifically deposed before the Court that pen-drive (Exhibit-1) was
supplied to him by the brother of the victim. It is further submitted
that even there are certain lacunae on the part of the investigating
officer while conducting the investigation. However, the benefit of
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
the same cannot be given to the accused. Learned counsel submits
that the victim can be termed as a sterling witness and, therefore,
simply relying upon her deposition, the conviction can be recorded.
However, in the present case, the Trial Court has committed grave
error while discarding the deposition given by the sterling witness
and thereby acquitting the respondent-accused. Learned counsel,
therefore, urged that the impugned order be quashed and set aside.
7. On the other hand, learned A.P.P. for the State submits
that, looking to the facts and circumstances of the present case, this
Court may pass an appropriate order. It is also submitted that, till
today, the State has not challenged the impugned judgment and order
rendered by the Trial Court by filing Government Appeal.
8. We have considered the submissions canvassed by the
learned counsels and also perused the F.I.R. and the deposition of the
prosecution witnesses and the other material provided by the learned
counsel for the appellant/victim. From the evidence led by the
prosecution before the Trial Court, it would reveal that the victim is
aged about 22 years. She has specifically stated that the first incident
took place 8 months prior to the date of lodging of the F.I.R. by her.
Specific date has been mentioned by her in the written complaint
with regard to the incident of rape. It has been alleged that, on
23.10.2022 at about 07:00 a.m. in the Government High School,
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
which is situated near her house, the respondent-accused committed
rape on her and thereafter threatened her, as a result of which she did
not inform her family members and the Police. Thereafter, marriage
of the victim was fixed on 31st May, 2023. Prior to that, it is alleged
that the respondent-accused sent the photographs and videos of the
victim on the mobile phone of the brother and relatives of the victim.
It is also alleged that the respondent-accused was demanding ₹ 2
lakhs for deleting the videos and photographs of the victim from his
mobile phone.
9. Thus, from the aforesaid written complaint given by the
victim, who is aged about 22 years, it appears that there was a delay
in lodging the complaint. It would further reveal from the evidence
led by the prosecution that the prosecution had examined 6
witnesses. PW-1 is the mother of the victim, PW-2 is the uncle of the
victim, PW-3 is the Doctor who had given the opinion with regard to
the age of the victim, PW-4 is the brother of the victim. The
prosecution has examined victim as PW-5 and PW-6 is the
investigating officer.
10. PW-1 Pramila Devi is the mother of the victim. She has
deposed, in her examination-in-chief, that her daughter was studying
in college. She became friend with Nitish Kumar, a boy from their
neighbourhood. She was unaware about all this. When her daughter's
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
marriage was fixed, the boy started sending obscene photographs. He
called her to the school next door and forcibly established physical
relation with her and said that if she tells anyone, he would kill her
and her entire family. She came to know about this when he sent the
photographs. She has stated that the Seizure List of the pen-drive was
prepared. She has further stated that accused did wrong acts with her
daughter and made the video and also made her daughter sign a
paper. Upon asking the girl, she came to know that the local residents
said that the matter should be resolved there and the marriage should
be done but her guardian did not agree. Nitish Kumar's uncle and
father demanded ₹ 2 lakhs.
10.1. In her cross-examination, she has stated that her
house and the house of the accused are in the same village at a
distance of 1 kilometre and the marriage cannot take place between
her family and the family of the accused. She has further stated that
her daughter told her about the photographs but she did not see it.
She does not know on which date the incident occurred. She has
further stated that the F.I.R. was lodged a year after the incident. She
does not remember the day, date and month of the incident. A
panchayat was held regarding the incident. Her daughter's marriage
was fixed in Bahuara. She does not remember the name of in-law.
She does not remember the name of the prospective groom. The
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
marriage broke. The girl was brought to Mahua Hospital and was
also taken to the Government Hospital, Hajipur. Her daughter was
admitted in the hospital for 3 days.
11. PW-2 Vinod Ray is the uncle of the victim. He has
stated in his deposition that, on 23.10.2022, Nitish Kumar did wrong
with his niece. He made a video of that and threatened her. He made
the video viral at the place where his niece's wedding was fixed. He
also sent it to the victim's brother. After this, a panchayat was held in
the village. A demand of ₹ 2 lakhs was made for deleting the video.
11.1. In his cross-examination, he has stated that the
marriage cannot take place between the two parties. He had got his
statement recorded before the Police. In his statement, he had stated
that the accused Nitish Kumar committed wrong on the victim on
23.10.2022. He has further stated that his nephew showed him the
video of the wrongdoing. The video was given to darogaji. He has
further stated that his niece used to go to study with Nitish Kumar.
He did not know whether there was a love affair between the two or
not. Further, he has stated that his niece told him that ₹ 2 lakhs were
demanded to delete the video.
12. PW-3 Dr. Ghazala Sehar Akhitar has deposed that, on
22.05.2023, she was posted as a Medical Officer at Sadar Hospital,
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
Hajipur. She had examined the appellant/victim and noted the
following:-
"M.I. - Til on left cheek, Til on right cheek.
She refused physical examination and internal
examination.
Dental examination- According to dental examination
by Dr. Priyanka, Sadar Hospital P.t. ID5303 dated 22.05.2023 her
dental age is between 19 to 20 years.
Radiological examination- According to radiological
examination by Dr. L.P. Gupta pt. ID HJ-E-0734 dated
22.05.2023, her bone age is about 22 years.
Opinion - Based on above reports, in my opinion her
clinical age is about 22 years (about twenty two years)."
12.1. In her cross examination, she has stated that the
Police produced the victim before her and she has not physically
examined the victim, as she had refused to get herself examined.
13. PW-4 Chandan Kumar Ray is the brother of the victim.
He got the information about the incident in February, 2023. He
called his sister to Delhi and enquired about the same upon which she
told him that there was a school next to the house where she was
called and raped and a video was made and a pistol was put on her
ear and she was called at other places and raped. The accused Nitish
Kumar used to chat, talk on video and ultimately he broke the
marriage. Further, he has stated that the video was made viral and the
marriage was broken.
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
13.1. In his cross-examination, he has stated that the
accused Nitish Kumar is the resident of his village. He was in Delhi
when he came to know about the incident. His sister had informed
him about the incident. His sister underwent a medical checkup after
the incident. He has further stated that the accused Nitish Kumar sent
the video to him. The incident took place in Samastipur district but
he does not remember the name of the village.
14. PW-5 is the informant/victim. She has stated in her
deposition that on 23.10.2022 at 07:00 a.m., Nitish Kumar called her
to meet in the Government school situated next to her house. There,
he started forcing her to have physical relationship with him. When
she protested, he put a gun on her temple and took her signature on a
blank paper and then raped her. He also made a video of this
incident. After that, he showed her the video and told her not to tell
anyone otherwise, he would kill her. Later on, when her marriage
was fixed, the accused Nitish Kumar edited the video and
photographs and sent it to the prospective boy's side, abused them
and forced them to break the marriage. Her marriage got broken.
After this, Nitish Kumar and his family demanded ₹ 2 lakhs from her
mother in exchange of deleting the video and photographs. When her
mother refused him, he said that he would make the video and photos
viral and, if possible, he would rape her again. During the
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
investigation, her medical examination was done by the Police and
her statement under Section 164 of the Code was recorded. Her
signature is on the statement which is marked as Exhibit-3. Further,
she had stated that she had given a pen-drive to the Police, which is
marked as Exhibit-1.
14.1. In her cross-examination, she had stated that her
mother filed the case 6 months after the incident. Her statement
regarding the incident was also given 6 months later. When she went
to the Sadar Hospital, Hajipur for medical examination, she gave a
written statement that she does not want to undergo physical
checkup. She has further stated, in Para-10, that the Government
school was closed at the time of the incident. There is a peon in the
school. He was not there at the time of incident. The school is a two-
storeyed school, she was on the second floor. The school room was
not open that day but the room where the accused took her was open.
The clothes which she was wearing at the time of incident was not
given to the Police because the clothes were completely torn during
the incident.
15. PW-6 Kumari Reena is the Investigating Officer of this
case. She has deposed that, on 20.05.2023, she was posted as S.I. in
Mahila Thana. After the responsibility of investigation was entrusted
to her, she inspected the scene of the incident which is said to be the
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
first room after climbing the first floor of the building of Madhyamik
Vidyalaya Hasan Sarai, Anchal-Patepur, Vaishali. Later, she had
stated that the victim was taken to the Sadar Hospital for medical
examination and the statement of the victim under Section 164 of the
Code was recorded. The accused Nitish Kumar was found
absconding. He surrendered in the Court. A seizure list of pen-drive
was made which is marked as Exhibit-7. She also received C.D.R.
She has further stated that she did not find anything noteworthy on
the incident site. In Para-5, she has stated that the victim was taken to
Sadar Hospital, Hajipur for medical examination. The victim refused
to undergo physical examination which is mentioned in Para-15 of
the case-diary. It is further mentioned that the victim refused to
undergo physical examination even in front of the Doctor. During the
investigation, the pen-drive was handed over to her by the victim's
brother. The mobile phone which was used for chatting was found to
be in the name of Md. Meraj. She did not seize the mobile phone on
which the video was sent. The victim's clothe was not seized by her.
The pen-drive was not sent for F.S.L. examination.
16. From the aforesaid deposition of the prosecution
witnesses, it transpires that PW-3 (Doctor) has specifically deposed
before the Court that, on 22.05.2023, she was posted at Sadar
Hospital, Hajipur as a Medical Officer and she had examined the
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
victim. However, the said witness has specifically stated, in the
examination-in-chief itself, that the victim refused physical
examination and internal examination. Even victim and the
Investigating Officer have also admitted the said aspect. Thus, from
the aforesaid deposition of the prosecution witnesses, it can be said
that for the reasons best known to the victim, who is aged about 22
years, she had refused for her physical examination as well as her
internal examination. Thus, in the present case, there is no medical
opinion from which it can be said that there was a sexual intercourse
with the victim by the present respondent-accused and whether the
rape was committed or not.
17. PW-6 (Investigating Officer), who has carried the
investigation, has though deposed that, during the course of
investigation, pen-drive and C.D.R. were seized and the Seizure List
was prepared, however, during the course of cross-examination, the
said witness has admitted that she did not send the pen-drive for
necessary analysis to the F.S.L. Further, she has specifically admitted
that the mobile phone from which chatting was done and videos were
recorded was in the name of Md. Meraj. She has further stated that
the mobile phone on which the videos were sent, was not seized by
her. Further, in Para-5, the investigating officer has also admitted that
the victim has refused for her physical and internal examination.
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
18. Thus, now we have considered the deposition given by
PW-5 (victim/informant). The said witness i.e. the victim has also
admitted, during cross-examination in Para-6, that she was sent for
medical examination to Sadar Hospital, Hajipur. However, she did
not give her consent for such examination. Further, with regard to the
incident of rape which took place on 23.10.2022 at 07:00 a.m. in the
morning in the Government High School, which is situated near her
house, the victim has admitted, during cross-examination in Para-10,
that the school was closed on the said day. Ordinarily, the peon
remains in the school. However, on the said date, he was not present.
The incident took place on the second floor of the school. The rape
was committed in the room. However, whether the said room was
opened or not, she does not remember.
18.1. At this stage, it is also pertinent to note that the
investigating officer (PW-6) has also stated, in Para-3, that she
visited the place of occurrence. However, the investigating officer
has stated that the victim had shown the room of the first floor as the
place of occurrence.
19. Further, for the alleged incident of rape which took
place on 23.10.2022, FIR was filed on 20.05.2023, i.e., after seven
months. Victim has failed to give reasonable explanation for the
same.
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
20. We have re-appreciated the entire evidence led by the
prosecution before the Trial Court. We are of the view that there are
major contradictions, inconsistencies and discrepancies in the version
of the prosecution. We are of the view that the victim cannot be
termed as a sterling witness and, in the present case, as observed
hereinabove, the victim has refused for her medical examination by
the Government Doctor. Further, there is a gross delay in lodging the
F.I.R. and in absence of any medical evidence or other corroborative
evidence led by the prosecution in support of the version given by the
victim, we are of the view that the prosecution has failed to prove the
case against the respondent-accused beyond reasonable doubt, so far
as the offences punishable under Sections 376, 504 & 506 of I.P.C.
are concerned.
21. In the present appeal, the appellant/victim has
challenged the order of acquittal rendered by the Trial Court. It is
pertinent to note that we are dealing with the acquittal appeal and, at
this stage, we would like to refer the decision rendered by the
Hon'ble Supreme Court in the case of Chandrappa and Ors. Vs.
State of Karnataka, reported in (2007) 4 SCC 415. The Hon'ble
Supreme Court has observed, in Para-42, as under:-
"42. From the above decisions, in our considered
view, the following general principles regarding powers of the
appellate court while dealing with an appeal against an order of
acquittal emerge:
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by
a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial
court."
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
22. In the case of Nikhil Chandra Mondal Vs. State of
West Bengal, reported in (2023) 6 SCC 605, the Hon'ble Supreme
Court has observed, in Para-22, as under:-
"22. Recently, a three-Judge Bench of this Court
in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of
Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] has
considered various earlier judgments on the scope of interference
in a case of acquittal. It held that there is double presumption in
favour of the accused. Firstly, the presumption of innocence that
is available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of law. Secondly,
the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by
the court. It has been further held that if two reasonable
conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal
recorded by the trial court."
23. From the aforesaid decisions rendered by the Hon'ble
Supreme Court, it can be said that there is double presumption in
favour of the accused when the order of acquittal has been accorded
by the Trial Court. Firstly, the presumption of innocence that is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be innocent,
unless he is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the
Patna High Court CR. APP (DB) No.357 of 2025 dt.30-04-2025
Court. Further, if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
disturb the finding of acquittal recorded by the Trial Court.
24. Keeping in view the aforesaid decisions rendered by
the Hon'ble Supreme Court, if the facts and circumstances of the
present case and the evidence led by the prosecution in the present
case are carefully examined, the prosecution has failed to prove the
case against the respondent-accused beyond reasonable doubt. We
have also gone through the reasoning recorded by the Trial Court. We
are of the view that the Trial Court has not committed any error while
acquitting the respondent herein for commission of the offences
punishable under Sections 376, 504 & 506 of I.P.C. We are,
therefore, of the view that no interference is required in the present
appeal which has been filed by the appellant/victim.
25. Accordingly, this appeal stands dismissed.
(Vipul M. Pancholi, J)
(Sunil Dutta Mishra, J)
Sachin/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 12.05.2025
Transmission Date 12.05.2025
