Kalendra Paswan vs The State Of Bihar
2025 Latest Caselaw 2524 Patna

Patna High Court

Kalendra Paswan vs The State Of Bihar on 19 August, 2025

Author: Rajeev Ranjan Prasad

Bench: Rajeev Ranjan Prasad

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.37 of 2023
    Arising Out of PS. Case No.-59 Year-2020 Thana- MAHILA P.S. District- Nalanda
======================================================
Kalendra Paswan Son of Ravindra Paswan R/o Village- Madhara, P.S.- Noor
Sarai, District- Nalanda
                                                         ... ... Appellant
                                Versus
The State of Bihar
                                                      ... ... Respondent
======================================================
Appearance :
For the Appellant       :        Mr. Sudish Kumar, Advocate
                                 Mr. Shailesh Kumar, Advocate
For the State           :        Mr. Abhimanyu Sharma, APP
For the Informant       :        Mr. Deovind Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
        and
        HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

 Date : 19-08-2025


            Heard Mr. Sudish Kumar, learned counsel for the

appellant, Mr. Deovind Kumar Singh, learned counsel for the

informant and Mr. Abhimanyu Sharma, learned APP for the State.

            2. This appeal has been preferred for setting aside the

judgment of conviction dated 02.11.2022 (hereinafter referred to as

the 'impugned judgment') and the order of sentence dated

10.11.2022 (hereinafter referred to as the 'impugned order') passed

by learned Additional Sessions Judge-Vith-cum-Special Judge

POCSO Act, Nalanda at Bihar Sharif (hereinafter referred to as the

'learned trial court') in Mahila P.S. Case No. 59 of 2020/POCSO GR

Case No. 44 of 2020. By the impugned judgment, the appellant has
 Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025
                                           2/27




       been convicted for the offences punishable under Sections 376(3) of

       the Indian Penal Code (in short 'IPC') and under Sections 3(a)

       punishable under Section 4(2) of the Protection of Children from

       Sexual Offences Act (in short 'POCSO Act'). By the impugned order,

       he has been sentenced to undergo rigorous imprisonment for 20 years

       with a fine of Rs.2000/- under Section 4(2) of the POCSO Act and in

       default of payment of fine, he has to further undergo three months

       simple imprisonment.

                    Prosecution Case

                    3. The prosecution case is based on the written

       application given by the informant-cum-victim (PW-1). In her

       written application, she has stated that on 26.05.2020 in the night

       when she was sleeping, the above-named appellant entered in her

       house and on the gun point, committed rape on her. It is further

       alleged that when the prosecutrix tried to raise an alarm, she was

       threatened to be shot at. The informant further alleged that the

       appellant further threatened her not to disclose about the incident

       to her family members. Thereafter, the accused left her house and

       then the informant narrated the incident to her parents on the same

       night. On the next morning, the family members of the informant

       went to the house of the appellant where they were ill-treated by

       the family of the appellant.
 Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025
                                           3/27




                    4. On the basis of this written application, Mahila P.S.

       Case No. 59 of 2020 dated 08.06.2020 was registered under

       Sections 376, 504 and 506/34 IPC and Sections 4/6 of the POCSO

       Act, 2012. After investigation, police submitted chargesheet being

       Chargesheet No. 144 of 2021 dated 31.07.2021 under Sections

       376, 457 and 506 IPC and Section 4/6 of the POCSO Act. Learned

       trial court vide order dated 27.08.2021 took cognizance of the

       offences under above mentioned Sections. Charges were read over

       and explained to the appellant in Hindi to which he pleaded not

       guilty and claimed to be tried, accordingly, vide order dated

       04.10.2021

, charges were framed under Sections 376, 457 and 506

IPC and Sections 4/6 of the POCSO Act.

5. In course of trial, the prosecution has examined

altogether eight witnesses and exhibited some documentary

evidences. The description of the prosecution witnesses and the

exhibits are given hereunder in tabular form:-

List of Prosecution Witnesses

PW-1 Victim PW-2 Bhabhi of the victim PW-3 Brother of the victim PW-4 Mother of the victim PW-5 Dr. Kumkum Kumari PW-6 Seema Kumari PW-7 Anju Tiwari PW-8 Arvind Kumar Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

List of Exhibits on behalf of the Prosecution

Exhibit-P1 Written Statement Exhibit-P1/1 Signature of victim on medical report Exhibit-P1/2 Signature of victim on statement recorded U/S 164 Cr.P.C.

               Exhibit-P2              Medico Legal Report
               Exhibit-P3              Endorsement on written statement
               Exhibit-P4              FIR
               Exhibit-P5              Statement of victim recorded U/S 164
                                       Cr.P.C.
               Exhibit-P6              Admission Register of the victim

6. Thereafter, the statement of the appellant was recorded

under Section 313 of the CrPC. The appellant denied all the

allegations and took a plea that he is innocent.

7. The defence has also examined three witnesses in

course of trial. The defence has not adduced any documentary

evidence. The description of defence witnesses are being

mentioned hereunder in tabular form:-

List of Defence Witnesses

DW-1 Sunita Devi DW-2 Rajendra Paswan DW-3 Gunwati Devi

Findings of the Learned Trial Court

8. Learned Trial Court after analyzing the evidence

available on the record found that though P.W. 1-minor victim has

deposed on the line of forcible sex but there was consensual

sexual relationship established by the accused on the date of Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

occurrence and accordingly, learned Trial Court opined that the

prosecution has succeeded in establishing its case that on the

relevant date and time, the victim was sleeping alone in the

'Aangan' of her house then accused made friendly entry into the

house of the victim and had established physical relationship with

the informant-cum-victim and while they were indulging in sexual

act then 'Bhabhi' of the victim woke up and saw them in

compromising position whereupon the accused ran away.

9. Learned Trial Court from the evidences of prosecutrix

(PW-1), her mother (PW-4) and family members including I.O.

(P.W. 7) found that these evidences conclusively proved beyond

all reasonable doubts that an offence of rape within the meaning of

Section 375 IPC has been committed by the accused upon the

victim which is punishable under Section 376(3) of IPC.

10. Learned Trial Court also found that the prosecutrix at

the time of incident was below the age of 16 years and would fall

in the definition of a 'child' under the provisions of the POCSO

Act. Learned Trial Court found sufficient materials available on

the record to establish penetrative sexual assault within the

meaning of Section 3(a) of the POCSO Act committed by the

accused.

Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

11. Accordingly, learned Trial Court held the appellant

guilty of the offences under Section 376(3) IPC and under Section

3(a) punishable under Section 4(2) of the POCSO Act.

Submissions on behalf of the Appellant

12. Learned counsel for the appellant has assailed the

impugned judgment and order on various grounds. It is submitted

that in this case, the FIR has been lodged after 13 days of the

occurrence. It has come in the evidence of the prosecutrix and her

mother that the family members had come to know about the

occurrence in the night itself, on the next day her mother wanted

to go to the Police Station to lodge the FIR but her father stopped

her. The prosecutrix has stated in paragraph '16' of her deposition

that after a lot of thoughts, discussions and consultation, the case

was lodged. It is submitted that the huge delay of 13 days in

lodging of the FIR, in the facts of the present case would create a

lot of doubts over the prosecution story.

13. Learned counsel further submits that to prove the age

of the prosecutrix, P.W. 8, who is the In-charge headmaster of

Utkramit Madhya Vidyalaya, Ganpura, Noor Sarai, has deposed.

He, for the first time, in course of trial brought a page of the

admission register of Class-VI. P.W. 8 has stated that the

prosecutrix had taken admission in Class-VI on 11.04.2018. Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

According to the entry in the said register, the date of birth of the

prosecutrix is 05.04.2007 but in course of his cross-examination,

P.W. 8 has stated that he is in-charge headmaster in this school

from 18.08.2018. He was not aware that on what basis the date of

birth of the victim has been entered in the admission register.

14. The defence suggested that the prosecutrix is major

and a married lady which this witness denied. It is submitted that

the entry in the admission register (Ext. P6) is not based on any

certificate of the date of birth. The date of birth entered in the first

school admission register has not been brought on record.

15. Learned counsel further submits that the prosecutrix

was also examined by a Medical Board constituted under the

Chairmanship of the Civil Surgeon-cum-CMO, Nalanda. Dr.

Kumkum Kumari (P.W. 5) being a member of the said Board has

proved the report of the Medical Board as Ext. P2/PW-4. On

dental examination, the doctor found teeth and in final

opinion, it is recorded that the age of the victim is in between 15-

16 years. There was no evidence of recent sexual act.

16. Learned counsel submits that in view of the

judgments in the case of Rajak Mohammad v. State of H.P.

reported in (2018) 9 SCC 248 and in the case of Court on its

own Motion vs. State of NCT of Delhi vs. State of NCT of Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

Delhi (Crl. Ref. 2/2024 judgment dated 02.04.2024) reported in

2024 SC OnLine Delhi 4484, a margin of plus/ minus two years

is required to be given to the age assessed by the Medical Board.

In such circumstance, the upper extremity of the age of the

victim/prosecutrix would come to 18 years. The learned Trial

Court has, in the impugned judgment, recorded a finding that the

appellant had made a friendly entry into the house of the victim

and he had established physical relationship with the informant-

cum-victim and while they were indulging in sexual act, then

Bhabhi of the victim woke up and saw them in compromising

position whereupon the accused ran away. It is submitted that the

finding of the learned Trial Court has no basis to stand. The

learned Trial Court seems to have recorded its finding on the basis

of surmises and conjectures.

17. Learned counsel submits that from the evidence on

record, it would appear that the place of occurrence is said to be

the house of the prosecutrix which is surrounded by a 10 fts. high

wall. In this regard, paragraph-3 of the deposition of the Bhabhi of

the victim (PW-2) has been placed before us. Learned counsel

submits that in such circumstance, when the door of the house was

closed and there was a 10 fts. high wall around the house, the

appellant could not have entered into the courtyard of the house Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

and committed rape on the victim who, according to the medical

examination also was about 15-16 years and could have well

resisted any attempt to commit rape.

18. Learned counsel further submits that the brother and

the mother of the victim who have deposed as P.Ws. 3 and 4

respectively have stated that the appellant is a handicapped

person. In paragraph-5 of his deposition, P.W. 3 has stated that he

knew the appellant for last 25-30 years, he had suffered right leg

polio in the childhood itself.

19. Learned counsel further submits that a complete

reading of the deposition of the prosecution witnesses would show

that they have made self-contradictory statements. The prosecutrix

(P.W. 1) has stated in her written application dated 08.06.2020

submitted before the Officer-in-Charge of the Police Station (Ext.

P1) that the appellant had committed rape on her at the point of

pistol, she has stated that she did not raise any halla because of

threat to her life but in course of Trial, she has not stated so. She

has developed her statement saying that the appellant had tied her

mouth, he was having a gun and threatened that he would kill

everyone whereafter he committed rape and went away. It is

submitted that according to the prosecutrix, she had raised halla

whereafter her brother, Bhabhi, mother and father all came to Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

whom she disclosed the occurrence. They went to the house of the

appellant in the morning, but the family members of the appellant

told them to do whatever they want. Her maternal uncle's son

(Mamera Bhai) Shankar had written the application as per her

direction on which she had put her signature. It is submitted that

Shankar has not been examined in this case. She was suggested by

the defence that the appellant was a handicap but she denied the

suggestion. She has stated in her cross-examination, in paragraph-

7 that there is a main door in her house which was closed from

inside on the date of occurrence. She has stated that her house is

boundary walled from all the four sides. She has stated in

paragraph '11' that she was sleeping on an iron cot on which one

Gendra was laid down but her Bhabhi (P.W. 2) has deposed that

her Nanad (victim) was sleeping at a distance from one hand from

the room in which P.W. 2 was sleeping with her husband. She has

stated that the victim was sleeping on the floor.

20. Pointing out to these contradictory statements,

learned counsel submits that in this case, the victim is not a

sterling witness, her statements are not inspiring confidence and

the medical evidence completely rules out the prosecution case. Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

Submissions on behalf of the Informant

21. On the other hand, learned counsel for the informant

has opposed the appeal, though he has submitted that the learned

Trial Court had no evidence before it to record that the victim and

the accused were indulging in consensual sexual act when Bhabhi

of the victim woke up and saw them in compromising position

whereupon the accused ran away. It is submitted that the defence

has not shown that there were any personal animosity between

both the sides, therefore, there was no reason for the prosecutrix to

falsely implicate the appellant in this case. As regards the plea of

the defence that the father of the victim had taken Rs. 40,000/-

from the father of the accused one year ago prior to lodging of this

case which the father of the accused was demanding but the father

of the victim was applying a dilly dallying tactics for which there

was a Panchayati convened from both the sides and that is the

reason for false implication, learned counsel submits that the

defence has not disclosed the month of payment of money to the

father of the victim. There was no paper prepared showing the

transaction of the money. Hence, the learned Trial Court has

rightly rejected the defence of the appellant. Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

Submission on behalf of the State

22. Mr. Abhimanyu Sharma, learned APP for the State

has though opposed the appeal but at the same time, learned APP

submits that upon application of the judicial pronouncements with

regard to the determination of age of the victim, the victim would

be a major aged 18 years. Learned APP does not dispute that there

is no explanation for the delay in lodging of the FIR and that the

medical evidence in this case completely rules out the prosecution

case.

Consideration

23. Having heard learned counsel for the appellant,

informant and learned APP for the State as also on perusal of the

Trial Court records, this Court has noticed that in this case, the

occurrence took place in the night of 26.05.2020 in the courtyard

of the house of the victim/prosecutrix. It is stated in the fardbeyan

that the appellant entered into the courtyard while the victim was

sleeping, he put a pistol on the victim and asked her to remain

silent otherwise she would be killed whereafter he committed rape

on her. The written information (Ext. P1) further states that when

the appellant had left the house, in the night itself she disclosed

this occurrence to her mother and father.

Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

24. This Court finds that a written information was

submitted to the Police Station on 08.06.2020 at 08:30 A.M. On

receipt of the written application (Ext. P1), a formal FIR (Ext. P4)

was lodged. According to Ext. P1, the date of occurrence is

26.05.2020. The victim was taken to a learned Magistrate for

recording her statement under Section 164 Cr.P.C. (Ext. P5). In

her statement under Section 164 Cr.P.C. recorded on 10.06.2020,

the prosecutrix has stated that the occurrence took place on

25.05.2020. This time, she has not stated that the appellant had

committed rape on her by putting pistol upon her and under threat

to kill. She has stated that the appellant had tied her hand and legs

and had also tied her mouth by a towel, for this reason she could

not raise any halla. When she started weeping then her brother and

Bhabhi came whereafter he fled away.

25. On a reading of the written application (Ext. P1) and

the statement under Section 164 Cr.P.C. (Ext. P5), it is evident

that within two days only the victim/prosecutrix had made

material deviations in her statement. While in the written

application (Ext. P1), she has stated that the appellant had pointed

pistol upon her and asked her to remain silent whereafter he

committed rape, she has not stated that her hands and legs were

tied or her mouth was tied by a towel. In her 164 statement (Ext. Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

P5), she did not say about committing rape on the point of pistol.

She says that her hands and legs were tied and mouth was also

tied. In Ext. P1, she has stated that after commission of rape, the

appellant had gone from the house then in the night, the

prosecutrix had told the story to her parents but in Ext. P5, she

says that when she started weeping then her brother and Bhabhi

came whereafter the appellant fled away.

26. The I.O. (P.W. 7) has stated that after recording of

the FIR and taking the charge of the investigation, she had

recorded the re-statement of the victim (PW-1), mother of the

victim (PW-4) and Shankar Paswan, all of them supported the

occurrence. She has stated that the place of occurrence is an

under-constructed house of the prosecutrix and according to the

prosecution, the appellant had crossed over the wall, went to the

courtyard of the prosecutrix and had committed wrong act with

her. She has given the boundary of the house of the prosecutrix.

The house of the appellant is in the eastern side of the house of the

prosecutrix. P.W. 7 has stated in paragraph-4 of her deposition that

there is evident door fitted in the wall of the house. The house has

only one gate, it is surrounded from all the four sides. She had not

found any gate or cloth at the place of occurrence and had not

seized the same. She had not recorded the statement of the people Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

residing in the boundary of the house. P.W. 7 has further stated

that in the written application, there is no explanation for the

delayed lodging of the FIR. She had not recorded the reason for

the delay in lodging of the case in the re-statement. P.W. 7 has

stated that in the medical report of the victim, the doctor (PW-5)

has written that there is no evidence of recent sexual intercourse.

She has stated that she was not aware that there was some money

transactions between the parties and because of a dispute over

that, this case was fabricated.

27. The prosecutrix in this case has been examined as

P.W. 1 who has proved the Ext. P1 and Ext. P2. She has identified

her signature on her statement under Section 164 Cr.P.C. In her

cross-examination, she has stated that her house is surrounded

from all the four sides, there is a main door in the house. She had

not seen the appellant entering into the house and could not see

that for how long he remained inside the house. In paragraph '12',

she has stated that she has raised 'halla' after the accused had fled

away. She has specifically stated that during his stay in the house,

she had not raised any 'halla'. In the adjacent room to the

courtyard, her brother and Bhabhi were sleeping. She had met

police after 7-8 days. Her family members had not gone to the

Police Station on the next day of the occurrence. In paragraph- Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

'16' she has stated that after discussions and deliberations, the

case was lodged.

28. P.W. 1 has stated that she had met police after 12

days in Noor Sarai Police Station, where her statement was

recorded. She had not received any injury on her body on the date

of occurrence. She had not informed the police on the date of

occurrence. She, however, denied the suggestion of the defence

that the accused/appellant was a handicapped person and his right

leg was atrophied. We find from the evidence of P.W. 1 that the

place of occurrence in this case is a house surrounded from all the

four sides. It is totally unnatural that while all the family members

were sleeping in the room and on the roof of the house, the victim

was alone sleeping in the courtyard. Though she claims that she

was sleeping on an iron cot where there was a bed, her Bhabhi

(P.W. 2) has stated that the victim was sleeping at a distance of

one hand from her room on the floor. P.W. 2 has stated that P.W. 1

had started weeping all of a sudden whereafter she came outside

after opening her door then she saw that the appellant was fleeing

away after opening the door of the house. Therefore, P.W. 1 has

not seen the appellant committing any sexual act with the victim.

P.W. 1 does not say that she found victim in a compromising

position with the appellant. She asked P.W. 1 as to what had Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

happened then she informed her that the appellant had committed

rape on her and fled away. Thereafter the mother, father of the

victim came down in the house and asked P.W. 1 about the

occurrence. In the morning, her father-in-law went to the house of

the appellant where the mother of the appellant told him to go and

do whatever he wanted. The father-in-law of P.W. 2/ father of the

victim has not been examined. In her cross-examination, she has

stated that when she woke up, at that time this appellant was in the

house, she and her husband tried to catch hold of him but he fled

away after opening the door. To this Court, this seems highly

improbable that the appellant who was a handicapped person

could have fled away after opening the door despite chase by P.W.

2 and her husband (P.W. 3).

29. This Court finds that while the prosecutrix has stated

that after committing rape on her the appellant had fled away and

only thereafter she had raised halla, P.W. 2 has stated that when

she woke up, the appellant was in the house. She and her husband

had tried to catch hold of him. The defence suggested P.W. 2 that

the appellant is suffering from Polio, therefore, he cannot run

away after opening the door, therefore, P.W. 2 was speaking a lie

but P.W. 2 denied this suggestion. The unnatural conduct of P.W. 2

may be found in her statement in paragraphs '6' and '7' where she Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

has stated that in the night, she had not raised any halla. In the

morning, the neighbouring families came to know about the

occurrence. She could not say the name of the boundary people. It

is important to note that in paragraph - 8 of her deposition, P.W. 2

has stated that on the next day of the occurrence, in the morning

Noor Sarai Police Station had come and had enquired from her,

she had told everything to police but police had not taken her

signature or thumb impression. Police had taken thumb

impression from her mother-in-law. It is evident from this

statement of P.W. 2 that police had arrived in the house of P.W. 2

on the very next day and according to her, police had taken her

statement. Her mother-in-law had also put her thumb impression.

This, in the opinion of this Court, is the first version of the

prosecution case which has been suppressed by the prosecution. In

paragraph-9 of her deposition, she denied the suggestion of the

defence that she was only making a fabricated story that on the

next day of the occurrence, police had come. P.W. 2 has, in fact,

confirmed in paragraph -9 that police had enquired from her and

she had told the entire story to police. She has stated that on the

next day of the occurrence, her statement had taken place before

the police whereafter her statement was not recorded. She has

denied the suggestion of the defence that P.W. 1 was adult more Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

than 18 years old, there are some disputes as they are neighbours

and for that reason, the false case has been instituted.

30. This Court further finds that P.W. 3 is the brother of

the prosecutrix who has also stated in his examination-in-chief

that when he heard the halla of his sister, he came outside of his

room and found that the appellant was fleeing away from his

house. His sister told him that he has committed rape on her. In

paragraph-5, he has stated that the appellant was known to him for

last 25-30 years. From the childhood, he had suffered Polio in his

right leg. He has stated that the appellant used to visit his house.

In paragraph-17 of his deposition, P.W. 3 has stated that on the

next day of the occurrence, Daroga Jee had gone to the house of

Kalendra Paswan (appellant). Noor Sarai Police had come, many

villagers had assembled, police had enquired from them and had

returned. He denied the suggestion of the defence that on the next

day of the occurrence, when police came and enquired from the

people, it was found that the information was not correct

whereafter no case was registered and police had returned because

no occurrence of rape had taken place. He has stated in paragraph

-21 that on the next day of the occurrence Noor Sarai police has

registered a case. This Court finds from the evidence of P.W. 3

that he has deposed on the line of his wife (P.W. 2). From his Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

statement also, it appears that the information was given to police

on the next day of the alleged occurrence and police had come to

the village. In fact, it would appear from the evidence of the

mother of the victim (P.W. 4) in paragraph -25 of her deposition

that on the next day of the occurrence, she was going to the Police

Station with her daughter to lodge the case but from the midway

her husband returned her and they left their thinking to lodge a

case. From the evidence of P.Ws. 2 and 3, it is evident that the

prosecution witnesses have stated about the arrival of police on

the very next day of the occurrence, inquired and recorded the

statement of P.W. 4, took her thumb impression also but P.W. 4 has

stated that on the next day, she was going to the police station to

lodge a case but her husband returned her from midway. The

husband of P.W. 4 has been withheld by the prosecution.

31. In this case, the defence has also examined three

witnesses and all of them had stated that the rape case lodged

against the appellant is false. D.W. 1 Sunita Devi seems to be an

independent witness who is married in the village about 12 years

ago. She has deposed that the victim is aged about 20 years and

the case has been lodged because the father of the prosecutrix was

not returning the money which was being demanded by the father

of the appellant for which a Panchayati had also taken place. Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

32. In the case of Rajak Mohammad (supra), the

Hon'ble Supreme Court has held in paragraphs '8', '9' and '10' as

under:-

"8. On the other hand, we have on record the evidence of Dr Neelam Gupta (PW 8), a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years.

9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.

10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."

33. Rajak Mohammad (supra) has been relied upon by

the Hon'ble Division Bench of the Delhi High Court in the case of

Court on its own Motion (supra). Paragraph '46' of the judgment Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

of the Hon'ble Division Bench of Delhi High Court is being

reproduced hereunder:-

"46. As an upshot of our foregoing discussion, the Reference is answered as under:-

(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?

Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range' be considered as age of the victim.

(ii) Whether the principle of 'margin of error' is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.

Ans: Yes. The margin of error of two years is further required to be applied."

This Court has followed the aforesaid rule in Cr. App (DB) No.

12 of 2023 (Sartaj Alam @ Md. Sartaj Alam vs. The State of Bihar

and Anr.).

34. In view of the discussions made hereinabove and the

judicial pronouncements on the subject, this Court would record

that Ext. P6 was not collected in course of investigation, a bare

perusal of Ext. P6 does not inspire confidence of the Court and it Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

cannot be taken as a proof of date of birth of the victim. Taking

into consideration the age determined by the Medical Board vide

Ext. P2/P4, on giving a plus/ minus two years margin, the upper

extremity of the victim would be of 18 years. Thus, she was major

on the date of occurrence.

35. We also find that in this case, there is a huge delay of

13 days in lodging of the FIR. The prosecution witnesses are not

consistent whether police had arrived in the village on the very

next day of the occurrence, but it is evident from the evidence of

P.W. 4 that the prosecution side decided not to lodge any case.

This gives rise to a thought in mind of this Court that had it been a

case of commission of rape, the prosecution would have definitely

lodged the case on the very next day. Apparently, the present case

has been lodged after 13 days with an afterthought, therefore, the

authenticity of the genuineness of the prosecution case becomes

doubtful.

36. We also find from the evidence on the record that the

place of occurrence is a house surrounded from all the four sides

by boundary wall. The victim has herself stated about the place of

occurrence. P.W. 2 has stated to the extent that the walls are 10 fts.

high. In such circumstance, it could not be possible for the

appellant to cross over the wall, jump into the courtyard and then Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

commit rape upon the victim then he would successfully flee away

after opening the door of the house, despite chase. We must keep

in mind that the appellant was suffering from Polio and his right

leg had suffered the Polio attack, therefore, the defence has

suggested that he could not have run away.

37. There is a material contradictions also in the

statement of the victim (P.W. 1) on the one hand and her brother

and Bhabhi on the other hand. While P.W. 1 says that she raised

halla after the appellant had fled away after commission of rape,

P.Ws. 2 and 3 have stated that when they woke up, they saw the

appellant in the house and they had tried to catch hold of him but

he had fled away by opening the main door. The I.O. did not find

any sign of rape at the place of occurrence. The clothes and the

bedsheets of the victim were not seized.

38. On a threadbare discussions of the entire evidence on

the record, we are of the opinion that in this case, the victim

cannot be said to be a sterling witness. Who will be a sterling

witness has been considered by the Hon'ble Supreme Court in the

case of Rai Sandeep v. State (NCT of Delhi) reported in (2012)

8 SCC 21. Paragraph '22' of the said judgment is being

reproduced below for ready reference :-

"22. In our considered opinion, The "sterling witness" should be of a very high quality and Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the 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. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral. documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

39. The fact that the prosecutrix is not a sterling witness,

her statements are vacillating and contradictory to the extent of

contradicting her own statements at various stages would make it

difficult for this Court to record a conviction on the basis of her

sole testimony. F.I.R. has been lodged after 13 days with an

afterthought. There is no other witness of the commission of rape.

Father of the victim whom she first complained about the

occurrence in the night has been withheld by the prosecution. The

case of defence is that he had taken loan of Rs.40,000/- from the

father of the appellant. His withholdment would give rise to an

adverse inference. The Medical report completely rules out any

sexual intercourse upon the victim.

Patna High Court CR. APP (DB) No.37 of 2023 dt.19-08-2025

40. In the kind of evidences available on the record, we

are of the considered opinion that the charges levelled against the

appellant are liable to fail.

41. The presumption of innocence remains intact and the

appellant has been able to demonstrate that the prosecution has not

proved its case beyond all reasonable doubts. In ultimate analysis,

we set aside the impugned judgment and order of the learned Trial

Court giving benefit of doubt to the appellant.

42. The appellant is in incarceration, he shall be released

forthwith if not wanted in any other case.

43. This appeal is allowed.

44. Let a copy of this judgment with the Trial Court

records be sent down to the Trial Court.

(Rajeev Ranjan Prasad, J)

(Sourendra Pandey, J) krishna/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          22.08.2025
Transmission Date       22.08.2025