Patna High Court
Aman Yadav @ Aman Kumar vs The State Of Bihar on 6 February, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.396 of 2023
Arising Out of PS. Case No.-18 Year-2020 Thana- EKCHARI District- Bhagalpur
======================================================
1. Aman Yadav @ Aman Kumar son of Late Indradeo Yadav @ Late Indradev
Yadav
2. Ravi Roshan Yadav @ Ravi Roshan Kumar Yadav son of Ramkhelawan
Yadav, both resident of village Bari Chataiya, Police Station- Ekchari,
District- Bhagalpur.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 426 of 2023
Arising Out of PS. Case No.-18 Year-2020 Thana- EKCHARI District- Bhagalpur
======================================================
Kundan Yadav @ Kundan Kumar son of Mantu Yadav @ Surendra Yadav,
resident of village - Badi Chataiya, Police Station- Ekchari, District -
Bhagalpur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 396 of 2023)
For the Appellants : Mr. Praveen Kumar, Advocate
For the State : Mr. Binod Bihari Singh, APP
(In CRIMINAL APPEAL (DB) No. 426 of 2023)
For the Appellant : Mr. Ranjeet Kumar, Advocate
Mr. Dilip Kumar, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE NANI TAGIA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date : 06-02-2025
The aforesaid appeals, preferred under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
2/46
the "Cr.P.C.") arise out of the same judgment of conviction and
the order of sentence dated 10.02.2023 and 04.03.2023
respectively, passed in POCSO Case No.81 of 2020 (arising out
of Ekchari P.S. Case No.18 of 2020) by the learned Court of
Exclusive Special Court (POCSO Act)-cum-7th Additional
District and Sessions Judge, Bhagalpur (hereinafter referred to
as the "learned Trial Judge"), hence, these appeals have been
heard together and are being disposed of by the present common
judgment and order. By the said judgment dated 10.02.2023, the
learned Trial Judge has convicted the appellants for commission
of offence under Section 376DA of the Indian Penal Code
(hereinafter referred to as the "I.P.C.") and under Section 5(g)/6
of the Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as the "POCSO Act") and they have
been sentenced to undergo rigorous imprisonment for life i.e. for
the remainder of their natural life under Section 5(g)/6 of the
POCSO Act with fine of Rs.50,000/- each and in default thereof,
the appellants have been sentenced to undergo simple
imprisonment for a period of six months. No separate sentence
has been awarded under Section 376DA of the I.P.C.
considering the provisions contained under Section 42 of the
POCSO Act.
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
3/46
2. The short facts of the case are that on 04.08.2020, the
victim girl had submitted her written report before the Officer-
Incharge, Ekchari Police Station. In the written report, the
victim girl had stated that on 29.07.2020 at about 6 p.m. in the
evening, while she was going from her house to Basa, on the
way three persons, namely, Aman Yadav (appellant No.1 of the
first case), Ravi Roshan Yadav (appellant No.2 of the first case)
and Ankush Kumar Yadav, by showing weapons and knife had
forcefully taken her in a field and had committed wrong with
her as also had assaulted her when she had raised alarm and
ultimately she became unconscious. The victim girl is stated to
have been thrown on the banks of river Ganges at Badi
Chataiya. In the morning at about 4 a.m., the victim girl had
stated to have regained consciousness, whereafter her family
members had taken her back to her house. It has also been stated
in the written report that she is a poor girl belonging to the
Scheduled Caste.
3. On the basis of the said written report of the victim girl, a
formal F.I.R. bearing Ekchari P.S. case No.18 of 2020 was
registered by the Station House Officer, Ekchari P.S. on
4.8.2020
at 15:30 hours under Sections 341, 323, 376, 506 of
the I.P.C. and under Section 4 of the POCSO Act against Aman
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Yadav (appellant No.1 of the first case), Ravi Roshan Yadav
(appellant No.2 of the first case) and one Ankush Kumar. After
investigation and finding the case to be true qua the appellants,
the police had submitted charge-sheet on 30.09.2020 under
Sections 376DA of the I.P.C., Section 4 of the POCSO Act and
Sections 3(1)(r)(s)(w)(ii)/3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities Act, 1989
(hereinafter referred to as the "Act, 1989"). Thereafter, the
learned Trial Judge had taken cognizance of offence under
Sections 376DA of the I.P.C., Section 5(g)/6 of the POCSO Act
and Sections 3(1)(r)/3(1)(s)/3(1)(w)(ii)/3(2)(v) of the Act, 1989
vide order dated 25.01.2021. On 03.12.2021, charges were
framed by the learned Trial judge against the appellants under
Sections 376DA of the I.P.C., Sections 3(1)(r)/3(1)(s)/3(1)(w)
(ii)/ 3(2)(v) of the Act, 1989 and Sections 5(g)/6 of the POCSO
Act, to which they pleaded not guilty and claimed to be tried.
4. During the course of trial, 17 witnesses have been
examined on behalf of the prosecution and three witnesses have
been examined on behalf of the defence. While P.W.1 Sikandar
Ravidas, P.W.2 Bindeshwari Paswan, P.W.3 Pappu Yadav and
P.W.4 Moti Yadav are hearsay and formal witnesses, P.W.5
Munilal Mandal is the grand-father of the victim girl, P.W.6
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Sauhadri Devi is the mother of the victim girl, P.W.7 Ramakant
Mandal is the father of the victim girl, P.W.8 Amarjeet Kumar
Mandal is the brother of the victim girl, P.W.12 Laxmikant
Mandal is the uncle of the victim girl and P.W.13 Nitish Kumar
is the cousin brother of the victim girl. As far as P.W.9 Mukesh
Kumar and P.W.11 Mani Bhushan Kumar are concerned, they
are stated to be the Investigating Officers of the present case.
P.W.10 Vikash Yadav is stated to be an independent witness.
P.W.14 Dr. Anand Kumar Murari, P.W.15 Dr. Beena Pani Poddar
and P.W.16 Dr. Punam Mishra are doctors, who have prepared
the age verification report/medical report of the victim girl.
P.W.17 Chanda Lal is the Judicial Magistrate, 1st Class, in
whose presence the statement of the victim girl was recorded
under Section 164 of the Cr.P.C.
5. Mr. Praveen Kumar, learned counsel appearing for the
appellants of the first case, has submitted that the statement of
the victim girl recorded by way of fardbeyan does not qualify to
be a statement of relevant fact by virtue of Section 32 of the
Indian Evidence Act, 1872. He has submitted that P.W.7
Ramakant Mandal has only identified the signature of her
daughter on the written report but has not proved the written
report. In fact neither the written report has been proved by the
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
person who has scribed the same nor the same has been
exhibited. Admittedly the writing of the written report is
different from the signature made by the victim girl over the
same, as also has been admitted by the Investigating Officer i.e.
P.W.9 Mukesh Kumar. It is also nowhere stated in the fardbeyan
that the same was read over to the victim girl who had
understood the same and put her signature. It is next submitted
that the statement of the victim girl under Section 161 Cr.P.C.,
recorded by the police, has neither been exhibited nor proved.
The learned counsel for the appellants of the first case has
contended that the statement of the victim girl recorded under
Section 164 Cr.P.C. cannot be a basis to convict the appellants.
It is next contended that even the medical report dated
18.08.2020 (Exhibit-P5/PW16), submitted by Dr. Poonam
Mishra (P.W.16) shows that there is no evidence of rape. It is
submitted that since the victim girl has not been examined/cross
examined, there is no other material on record to prove the guilt
of the appellants, more so since the written report of the victim
girl and the statement made by her under Section 164 Cr.P.C. are
contrary to each other. In fact, the doctor has also not found any
mark of violence much less any internal or external injury.
6. The learned counsel appearing for the sole appellant of
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
the second case Sri Ranjeet Kumar has submitted that the
appellant of the second case, namely, Kundan Yadav @ Kundan
Kumar Yadav was neither named in the F.I.R. nor in the
statement made by the victim girl under Section 161 Cr.P.C. and
his name has only surfaced in the statement made by the victim
girl under Section 164 Cr.P.C. on 19.08.2020. He has submitted
that the foundational facts are incorrect and the victim, while
giving her statement under Section 161 Cr.P.C. or under Section
164 Cr.P.C., before the learned Magistrate, has concealed the
fact that she was pregnant, hence no offence as alleged is made
out qua the sole appellant of the second case. The learned
counsel for the sole appellant of the second case has further
contended by referring to the statement made by the victim girl
under Section 164 Cr.P.C. that the Judicial Magistrate, 1st class
had not put any explanatory question to the victim girl to ensure
that she was in a fit state of mind to give her statement. It is
contended that a statement made under Section 164 Cr.P.C. is
not a substantive piece of evidence and the same can only be
used for contradiction and/or corroboration but cannot form the
basis for conviction of the appellant. It is also contended that
presumption under Section 29 of the POCSO Act is also not
made out. The learned counsel for the appellant of the second
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
case has also submitted that in the written report, the victim girl
has stated about one incident of commission of rape, however,
in her statement made under Section 164 Cr.P.C. she has added
one more incident totaling to two incidents of rape. It is
contended that P.W.8 Amarjeet Kumar Mandal (brother of the
victim girl) and P.W.13 Nitish Kumar (cousin of the victim girl)
have made contradictory statements and even the father and
uncle of the victim girl i.e. P.W.7 and P.W.12 have made
contradictory statements. Thus, it is submitted that since the
statements made by the witnesses are full of contradictions and
untruthful, the same are not liable to be relied upon. It is next
submitted that the medical evidence on record rules out the
factum of rape having being committed qua the victim girl
moreso, since the same does not show any sign of violence or
presence of external/internal injuries over the body of the victim
girl and on the contrary pregnancy of six weeks and two days
was found, which makes the entire incident doubtful.
7. At this juncture, the learned counsel for the appellant of
the second case has relied on a judgment rendered by the
learned Division Bench of this Court, in the case of Pawan
Kumar vs The State of Bihar & Ors. (Criminal Appeal (DB)
No. 724 of 2023), delivered on 26.02.2024, to submit that in
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
case of conflict between oral and medical evidence, the former
is to be preferred unless the medical evidence completely rules
out the oral evidence but when medical evidence specifically
rules out the claim of injury to have been inflicted, as per the
version of the eye witness then the court can draw adverse
inference to the effect that the prosecution's version is not
trustworthy.
8. The learned counsel for the appellant of the second case
has further submitted that it is very surprising that in a village
which is densely populated, nobody had seen either the victim
girl being taken away or brought back to her house in the
morning in an unconscious state. The learned counsel for the
appellant of the second case has relied on a judgment rendered
by the Hon'ble Apex Court in the case of Raju and others
Versus State of Madhya Pradesh, reported in (2008) 15 SCC
133, to contend that though it cannot be lost sight that rape
causes the greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well, hence the
accused must also be protected against the possibility of false
implication, particularly where a large number of accused are
involved, though the broad principle is that an injured witness,
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
who is present at the time when the incident happened would
not tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the statement of
such a witness is always correct or without any embellishment
or exaggeration.
9. The learned counsel for the appellant of the second case
has next relied on a judgment rendered by the Hon'ble Apex
Court in the case of Santosh Prasad @ Santosh Kumar Versus
State of Bihar, reported in (2020) 3 SCC 443, to submit that in
case the solitary version of the prosecutrix does not inspire
confidence and does not appear to be absolutely trustworthy,
unblemished and of sterling quality, the same should not be
taken as a gospel truth on its face value and in absence of any
other supporting evidence, conviction ought not to be sustained
and on the contrary the accused should be given the benefit of
doubt.
10. The learned counsel for the appellant of the second case
has next relied on a judgment rendered by the Hon'ble Apex
Court, in the case of Manak Chand @ Mani Versus The State
of Haryana, reported in 2023 SCC Online SC 1397, to contend
that in cases where age of the prosecutrix is a crucial factor,
bone ossification Test ought to be conducted for determination
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
of the age of the prosecutrix, however, in the present case,
neither Bone Ossification Test has been carried out nor
Radiological Report is on record, hence the factum of the
prosecutrix being a minor at the time of commission of the
occurrence in question is itself doubtful, as such, benefit of
doubt ought to be given to the appellant.
11. Per contra, the learned A.P.P. for the State Sri Dilip
Kumar Sinha has submitted that the fardbeyan of the victim girl,
her re-statement and her statement recorded under Section 164
Cr.P.C. are consistent and enough to prove the guilt of the
appellants. It is further submitted that all the witnesses except
P.W.1 to P.W.4 have supported the case, their testimonies are
consistent and no contradictions are present. It is also submitted
that the appellants have committed a heinous crime and the
records would bear it out that ample materials are available on
record to connect the appellants with the alleged crime, hence,
their conviction and sentence should be upheld. The learned
A.P.P. for the State has further submitted that the learned Trial
Judge has passed the impugned judgment and the order of
conviction and sentence by considering the materials on record
and the same is a reasoned order. Thus, both the appeals are fit
to be dismissed.
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
12. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
13. P.W.1 Sikandar Ravidas, P.W.2 Bindeshwari Paswan,
P.W.3 Pappu Yadav and P.W.4 Moti Yadav have all stated in
their testimony that they had heard that some quarrel had taken
place due to some trouble having brewed in relation to the
daughter of Ramakant Mandal, however, they have denied to be
knowing anything about the occurrence in question.
Nonetheless, they have stated that they recognize the accused
persons.
14. P.W.5 Munilal Mandal is the grand-father of the victim
girl, who has stated in his deposition that the victim girl is his
grand-daughter. The occurrence dates back to about one year.
On the date of occurrence, his grand-daughter was 13-14 years
old, on which day the family members had gone to harvest corn
crops and when his grand-daughter had not returned back to the
house, they had searched for her but could not know about her
whereabouts. In the morning his grandson and nephew had gone
to search for her grand-daughter near the banks of river Ganges
where they found her lying in an unconscious state and then
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
they had brought her back to the house. Thereafter, the grand-
daughter of the said witness had disclosed to P.W.5 that she had
gone to pluck chilies, where Ravi Roshan Yadav (appellant No.2
of the first case), Ankush Yadav, Kundan Yadav (sole appellant
of the second case) and Aman Yadav (appellant No.1 of the first
case) had come, pressed her mouth and had taken her inside the
corn field where they had raped her and then they had thrown
her near the banks of river Ganges. P.W.5 has also stated that the
statement of the victim girl was recorded and she was also
examined by the doctors and after one year she had hanged
herself in the bathroom and died. P.W.5 had recognized all the
accused persons, who were standing in the dock, namely,
Kundan Yadav (sole appellant of the second case), Ravi Roshan
Yadav (appellant No.2 of the first case) and Aman Yadav
(appellant No.1 of the first case).
15. P.W.6 Sauhadri Devi is the mother of the victim girl, who
has stated in her evidence that the occurrence dates back to two
years and the victim is her daughter who on the fateful day had
gone with her in the corn field to cut crops and after sometime
she had sent her back to home for preparing food, however since
chilies were not available she had gone to Basa to pluck chilies
and when she was returning after plucking chilies, four boys,
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
namely Ravi Roshan Yadav (appellant No.2 of the first case),
Kundan Yadav (sole appellant of the second case), Ankush
Yadav and Aman Yadav (appellant No.1 of the first case) had
caught her and forcibly taken her inside the corn field where
they had committed rape with her leading to her daughter
becoming unconscious and then the said four accused persons
had thrown her daughter near the banks of the river. P.W.6 has
further stated that in the evening, she had gone to her house
after cutting corn crops and had asked her younger daughter
about the whereabouts of the victim girl, whereupon she told her
that she had gone to pluck chilies in the field but had not
returned. Thereafter, search was made but the victim girl was
not found. On the next day the son of P.W.6, namely Navin
Kumar was sent to search for the daughter of P.W.6, who found
her sitting near the banks of the river, whereafter he brought her
back to the house and on being asked the victim girl narrated the
entire incident to P.W.6. The family members of the victim girl
had then gone to the mother and father of the boys, but they told
them to do whatever they want to do. At the time of the incident,
the age of the victim girl was 14 years and she was studying in
Class VIII. The doctor had conducted medical examination of
the victim girl. The victim girl was also treated at a private
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Hospital at Kahalgaon. P.W.6 had recognized all the accused
persons standing in the dock. In cross examination, P.W.6 has
stated that a case was filed in the Police Station after four days
of the incident and she had accompanied her daughter to the
Police Station where written report was filed by the victim girl.
P.W.6 has denied that the name of Kundan Yadav was not
present in the report. P.W.6 has also stated that no family
members of the victim girl had seen the accused persons taking
away the victim girl.
16. P.W. 7 Ramakant Mandal is the father of the victim girl,
who has stated in his evidence that the occurrence dates back to
two years. The victim girl is his daughter and at the time of
incident, his daughter was 14 years old. He has stated that the
occurrence had taken place at about 6 p.m. in the evening on
29.07.2020 and on that day four boys, namely Kundan Yadav
(sole appellant of the second case), Aman Yadav (appellant No.1
of the first case), Ravi Roshan Yadav (appellant No.2 of the first
case) and Ankush Yadav had committed rape with his daughter
and had then thrown her near the banks of river Ganges and at
that time he was at Sahebganj, however after he returned back,
his daughter had disclosed the names of all the aforesaid four
accused persons, who had taken the victim girl from her Basa
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
into the corn field and raped her, whereafter she was thrown
near the banks of river Ganges. P.W. 7 has further stated that he
had then taken his daughter to the Police Station and filed a
case. P.W. 7 had recognized the signature of his daughter made
on the written complaint, which has been exhibited as Exhibit-
P1/P.W.7. On 15.07.2021 when the daughter of P.W. 7 was
sleeping in the house, P.W.7 had gone to Sahebganj for earning
his livelihood and in the meantime unknown persons had killed
his daughter and hanged her in the bathroom. P.W.7 had
recognized all the accused persons standing in the dock. In cross
examination, P.W.7 has stated that he had returned from
Sahebganj on 30th whereupon, his daughter had disclosed about
the incident and then case was filed in the police station on
04.08.2020. P.W.7 has stated that at the initial point of time he
did not want to file any case, however sanha was given at the
Police Station four days back and the Officer-Incharge was
trying to settle the matter. P.W.7 has also stated that he had gone
with his daughter to file the case and the case was filed on the
basis of written report of his daughter. P.W.7 has also stated that
he had given a written complaint to the Superintendent of Police
that the Police Station is not accepting the written report since
past four days. P.W.7 has next stated that the case which was
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
filed in the Police Station did not contain the name of Kundan
Yadav (sole appellant of the second case) since he was under
pressure and crooks had surrounded his brother-in-law at
Bakhiya but no complaint was made with regard to the same nor
any case was filed in the Court. P.W.7 has also stated that his
statement was recorded by the police, however, he had not
disclosed the name of Kundan Yadav since he was under
pressure. At the time of the occurrence, his son, his nephew and
his wife were at home. P.W.7 has next stated that if his daughter
has committed suicide, it is because of the present case and his
brother, namely Laxmikant Mandal had filed a case in
connection with the suicide committed by the victim girl. P.W.7
has denied the suggestion that they used to leave cattle for
grazing in the field of Kundan Yadav leading to dispute having
taken place amongst them and on account of such dispute,
Kundan Yadav (sole appellant of the second case) has been
falsely implicated in the case.
17. P.W. 8 Amarjeet Kumar Mandal is the brother of the
victim girl, who has stated in his evidence that the occurrence
dates back to two years. On 29.07.2020 at about 6 p.m., his
sister had gone to the Basa to pluck chilies and from there she
disappeared. On search she was not found. On the next day in
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
the morning, when he was going towards the bridge for easing
himself, he found his sister lying in an unconscious state on the
banks of river Ganges, whereafter he had brought her back to
their house where she had disclosed about the incident to her
mother. P.W.8 has stated that his sister had disclosed that
Ankush Kumar, Ravi Roshan Yadav (appellant No.2 of the first
case), Aman Yadav (appellant No.1 of the first case) and
Kundan Yadav (sole appellant of the second case) had together
committed rape with her. A mediation was held by the
panchayat, after the incident, however the accused persons did
not come and even their family members did not come,
whereafter the Police Station was informed and the case was
filed. P.W.8 had recognized Aman Yadav (appellant No.1 of the
first case), Ravi Roshan Yadav (appellant No.2 of the first case)
and Kundan Yadav (sole appellant of the second case), who
were present in the dock. P.W.8 has further stated that after
about one year, i.e. on 15.07.2021 his sister was killed and
hanged in the toilet when he was not at home.
18. In cross examination, P.W.8 has stated that on the date of
occurrence his sister had not come back to the house and they
had been searching for her all throughout the night but they had
not given any information to the Police Station. In the night of
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
the occurrence, no information was given to the Mukhiya/
Sarpanch, but in the morning, information was given by his
father. P.W.8 has also stated that his father was working at
Sahebganj and had returned in the morning at about 8 a.m. He
has stated that a case was filed on 04.08.2020, after six days of
the incident. P.W. 8 has stated in his cross examination that he
has not seen the accused persons taking away his sister and
when he had gone to ease himself in the morning, Nitish was
also along with him, who is his maternal brother. He has stated
that when his sister was found at the banks of river Ganges, she
had not disclosed anything to him or his maternal brother but
had disclosed the names of the accused persons to his mother.
He has stated that the police had recorded his statement and it is
not a fact that he had not taken the name of Kundan Yadav (sole
appellant of the second case) before the police. P.W.8 has also
stated in his cross examination that he does not know as to who
had killed his sister and hanged her. He has stated that Kundan
Kumar (sole appellant of the second case) resides 15-20 houses
away from his house. He has denied the suggestion that Kundan
has been falsely implicated in the present case on account of his
father, namely Surendra Yadav having filed a complaint against
father of P.W.8 before the Gram Kachahari to the effect that
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
father of P.W.8 leaves the cattle in the field for grazing. In his
cross examination, P.W.8 has further stated that he has not read
the complaint filed by his uncle with regard to the suicide of his
sister as also he does not know that the case number is 01/2021.
He has denied the suggestion that the father of the co-convict,
namely Aman used to quarrel with them, which has led to filing
of a false case.
19. P.W.9 Mukesh Kumar has stated in his evidence that the
occurrence dates back to 04.08.2020, when he was posted as
Officer-In charge of N.T.P.C. Police Station at Kahalgaon. On
14.09.2020 P.W. 9 had assumed charge as Officer-In charge of
Ekchari Police Station and on 16.09.2020 he had taken over the
charge of investigation of Ekchari P.S. Case No.18 of 2020 from
Sub-Inspector of Police, Manibhushan Kumar. P.W.9 had
arrested Kundan Yadav, whom he had recognized in the Court.
P.W.9 has further stated that after completing the investigation
on all aspects, he had submitted the charge sheet bearing CS.
No.25 of 2020 dated 29.09.2020 under Section 376 of I.P.C.,
Section 4 of the POCSO Act and Sections 3(1)(r)(s)(w)(ii)/3(2)
(v) of the Act, 1989 against Aman Yadav (appellant No.1 of the
first case), Ravi Roshan Yadav (appellant No.2 of the first case)
and Kundan Yadav (sole appellant of the second case). P.W.9
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
has identified his writing and signature made over the charge
sheet, which has been marked as Exhibit-P/2/P.W.9. In cross
examination, P.W.9 has stated that he had submitted the charge
sheet after going through the case diary. He has stated that on
the written report, signature of only the victim girl is present and
upon perusal of the said written complaint, it appears that the
same has been written by someone else and thereafter, the
victim girl had made her signature over the same. The name of
the person, who has scribed the written complaint, is not
mentioned on the same.
20. P.W.10 Vikas Yadav has stated in his deposition that the
occurrence dates back to 2-3 years. The daughter of Ramakant
Mandal was having love affair with Nitish Kumar and he had
heard rumors about the same. In fact, Nitish Kumar had eloped
with the daughter of Ramakant Mandal, however the victim girl
did not return back and she died there. P.W.10 has stated that he
knows Nitish Kumar. In cross examination, P.W.10 has stated
that he is not aware as to who had taken away the victim girl,
however, he knows that the victim girl had hanged herself and
died. P.W.10 has also stated that Nitish Kumar is maternal
brother of the victim girl and there was rumor in the village that
the victim girl had become pregnant but Nitish Kumar had
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
refused to marry her.
21. P.W.11 Manibhushan Kumar is the Investigating Officer
of the present case and he has stated in his evidence that on
04.08.2020 he was posted as Officer-In charge, Ekchari Police
Station and on 04.08.2020 he had assumed the investigation of
Ekchari P.S. Case No.18 of 2020, whereafter he had conducted
inspection of the place of occurrence which is situated at the
chili field of Ajit Jha at Badi Chataiya, Bhagalpur. P.W.11 has
stated that the first place of occurrence is surrounded on the
north by the corn field of Keshri Kant Jha, on the south by chili
field of Rishidhar Jha, on the east by the corn field of Umesh
Chandra and on the west by the chili field of Fuday Yadav @
Fudo. P.W.11 has also stated that the second place of occurrence
of the present case is corn field of Keshri Kant Jha, which is
surrounded on the north by the chili field of Ajit Jha and on the
south by the field of Nilmani Jha, on the east by the house of
Keshri Kant Jha and on the west by the chili field of Ram
Khelawan Yadav. The third place of occurrence is situated at
Badi Chataiya near the banks of river Ganges where on the
north river Ganges is situated, on the south river is flowing, on
the east village concrete road is situated, on the west field of
Rishidhar Jha is present and on the northern and southern side,
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
river is flowing. P.W.11 is stated to have examined Sahodi Devi,
Ramakant Mandal, Nitish Kumar, Amarjeet Mandal, Sikandar
Ravidas, Bindeshwari Paswan, Kampu Yadav, Moti Yadav,
Vikash Kumar, Laxmikant Mandal and Munilal Mandal and
recorded their statement. The medical examination of the victim
girl was also conducted and her statement under Section 161
Cr.P.C. was recorded by the Sub-Inspector, whereafter the
statement of the victim girl was recorded under Section 164
Cr.P.C., before the learned Court.
22. P.W.11 is also one of the Investigating Officer, who is
stated to have arrested accused Aman Yadav and Ravi Roshan
Yadav whom he had recognized in the Court. P.W.11 has further
stated that the learned Court had handed over the victim girl to
her mother in his presence. In his cross examination, P.W.11 has
stated that after taking over the investigation and going through
the written complaint of the victim girl, he had registered a case
and there the name of Kundan Kumar (sole appellant of the
second case) was not present and in fact the victim girl had also
not taken the name of Kundan Kumar in her re-statement.
P.W.11 has also stated that neither the mother of victim girl nor
the witnesses Ramakant Mandal, Nitish Kumar and Amarjeet
Mandal had taken the name of Kundan in their statements made
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
before him. P.W.11 had also recorded the statement of the
persons belonging to the area surrounding the place of
occurrence, however, they had also not taken the name of
Kundan. As far as the victim girl is concerned, she had also not
taken the name of Kundan Kumar in her statement made U/s.
161 Cr.P.C. P.W.11 has next stated that no information was
given to him regarding members of the prosecution being
threatened by the accused persons. P.W.11 has stated that
although it was orally informed that the accused persons were
threatening the family members of the victim girl but no written
complaint was made.
23. P.W.11 has denied recording the statement of
Mukhiya/Sarpanch. P.W.11 has also denied having knowledge
regarding the accused Kundan having made an application
before the Sarpanch, Gram Kachahari, Khawaspur on
05.06.2020 with regard to the cattle belonging to the family
members of the victim girl having grazed the crops situated over
the field of Kundan and the same having led to quarrel in
between them. P.W.11 has admitted that in the medical report, it
has been mentioned that the victim girl is carrying a pregnancy
of six weeks and two days and that the medical examination was
made within a week of the incident. P.W.11 has stated that he
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
had not investigated as to who is the father of the child in the
womb of the victim girl as also with regard to the relation, the
victim girl was having with her cousin brother, namely Nitish
Kumar. P.W.11 has also stated that he has no knowledge as to
whether the victim girl had committed suicide or not. P.W.11 has
also denied to have conducted investigation with regard to the
dispute in between the father of the victim girl and the family
members of the accused persons.
24. P.W.12 Laxmikant Mandal is the uncle of the victim girl,
who has stated in his evidence that the occurrence dates back to
29.09.2020 when he was at Sahebganj and when he came from
Sahebganj to his house situated at Badi Chataiya then his niece
told him that when she was coming from Basa to her house four
boys, namely, Aman Yadav (appellant No.1 of the first case),
Ravi Roshan Yadav (appellant No.2 of the first case), Ankush
Yadav and Kundan Kumar Yadav (sole appellant of the second
case) had caught hold of her and committed rape with her.
Thereafter, panchayati was held, however, the accused persons
did not heed to the decision taken at the panchayati. Then the
brother of P.W.12 had gone to the Police Station but the Officer-
In charge had kept the written report but did not proceed with
the case, whereafter complaint was made before the Deputy
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Superintendent of Police and after he had created pressure, the
case was registered. P.W.12 has stated that when the victim girl
had committed suicide on 15.06.2021, then the police people
had forcibly made them write that the victim girl has committed
suicide. P.W.12 had recognized the four accused standing in the
dock. In cross examination, P.W.12 has stated that he had also
gone along with his brother to the Police Station to file the case
and the case was filed by his brother, namely Ramakant Mandal
(P.W.7). P.W.12 has denied to be having knowledge as to against
whom his niece had filed the case. He has also stated that the
name of Kundan was not taken in the complaint since they had
put gun on the forehead of the maternal uncle of the victim girl.
P.W.12 has further stated that his statement was not recorded by
the police and whatever has been stated by him has been stated
in the Court by way of the present testimony. He has also stated
that in the case which was filed regarding the suicide committed
by his niece, it has not been stated that Kundan and other
accused persons had together killed his niece and then hanged
her and shown the same to be a case of suicide. He has denied to
have stated wrong facts during the course of his deposition.
P.W.12 has also stated in his cross examination that the case was
filed by his brother in the Police Station over which the victim
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
girl had made her signature. He has next stated that the report
filed by his brother was changed by the Officer-In charge who
had got a report written on his own and then the victim girl had
made her signature over the same. P.W.12 has further stated in
his cross examination that when his niece had hanged herself, he
had brought her down by cutting the rope with a hasua. He has
also stated that it is not a fact that he and his sister-in-law had
killed the victim girl, hence postmortem was not done. He has
also denied that his niece was having love affair with Nitish
Kumar and that is why she had become pregnant, leading to her
hanging herself.
25. P.W.13 Nitish Kumar is the cousin of victim girl, who has
stated in his evidence that the occurrence dates back to two
years and on the date of occurrence he was at Badi Chataiya
where his Nani's house is situated. He has stated that the victim
girl is her maternal sister and on the date of occurrence the
victim girl had gone to the field to bring chilies but she did not
return back, whereafter search was made but she could not be
found. In the morning, P.W.13 and Amarjeet Kumar (P.W.8) had
gone to search for the victim girl and when they had reached
near the banks of river, they found the victim girl lying there
unconscious, whereafter they had lifted her and brought her
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
back to home and when she regained consciousness at home,
she disclosed, upon being inquired that four boys, namely,
Aman Yadav (appellant No.1 of the first case), Ravi Ranjan
Yadav (appellant No.2 of the first case), Ankush Yadav and
Kundan Yadav (sole appellant of the second case) had together
committed rape with her. In cross examination, P.W.13 has
stated that he had not told the police that on 30.07.2020 at about
4 a.m. in the morning when he along with Amarjeet Mandal had
gone to a place beneath the Chataiya Bridge near Ganga
Kachaar for easing themselves, they had seen the victim girl
standing near the jalebi tree and on asking her, she did not say
anything at that time and when they reached home along with
Amarjeet Mandal, the victim girl had disclosed about the
incident to her mother. He has further stated that it is not a fact
that he had not told the police in his statement that the victim
girl had not taken the name of Kundan Yadav before her mother.
P.W.13 has also denied that he had not taken the name of
Kundan before the police and that he had not told the police that
Kundan is also part of the occurrence. P.W.13 has also stated
that he does not know as to whose name the victim girl had
given in the case. P.W.13 has further stated in his cross
examination that he had not told the police that when they had
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
gone to search for the victim girl, they had seen her standing
near the jalebi tree and upon asking her she had not disclosed
anything, instead he had told the police that the victim girl was
unconscious. P.W.13 has next stated that when he and Amarjeet
had reached the place of occurrence, after having setout to
search for the victim girl, they found the victim girl to be
unconscious. He has also stated that immediately after easing
themselves, they had found the victim girl in an unconscious
state, whereafter they had lifted her and taken her home where
she regained consciousness. He has denied to have made any
mistake resulting in the victim girl having becoming pregnant,
leading to her becoming unconscious.
26. P.W.14 Dr. Anand Kumar Murari is the Doctor, who has
determined the age of the victim girl and he has stated in his
evidence that on 05.08.2020, he was posted in the Radiology
Department of J.L.N.M.C.H., Bhagalpur as a Radiologist, on
which day the victim girl was referred by the Superintendent of
J.L.N.M.C.H., Bhagalpur to his Department for radiological
examination, whereafter he had examined X-ray of both wrist
with elbow and pelvis of victim, done by the Subordinate X-Ray
Technician on duty and had opined as follows :-
"Epiphysis of iliac crest and distal ends of
radius and ulna appeared-not fused.
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Conclusion- Age on above radiological
grounds appears between 14-16 years."
P.W.14 has proved the said report, which has been
prepared by him as also he has identified his writing and
signature, which has been marked as Exhibit P-3/PW14. In
cross examination, P.W.14 has stated that for the purposes of age
determination, various bones of the body of the victim girl was
examined by him and he had determined the age of the victim
girl on the basis of the data to be in between 14-16 years. P.W.14
has also stated that the victim girl was not on the verge of
majority.
27. P.W.15 Dr. Bina Rani Poddar is the Doctor, who had
examined the vaginal swab of the victim. P.W.15 has stated that
on 05.08.2020, she was posted at J.L.N.M.C.H., Bhagalpur as
Medical Officer and on that day vaginal swab of the victim was
referred by the Superintendent, J.L.N.M.C.H., Bhagalpur to her
department for examination and after examination of the same,
she did not find any spermatozoa in the vaginal swab. P.W.15
has proved the said report as also identified her writing and
signature, which has been marked as Exhibit P-4/PW15. In her
cross examination, P.W.15 has stated that after examination of
the vaginal swab, the same is destroyed and slide of the vaginal
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
swab is prepared and examined by the means of a microscope.
She has stated that she does not know as to after how many days
of taking the vaginal swab, the same was sent to her, however
possibility of finding spermatozoa in the vaginal swab remains
within two days of taking the vaginal swab.
28. P.W.16 Dr. Poonam Mishra is the Doctor, who has
medically examined the victim girl. P.W.16 has stated that on
05.08.2020 she was posted as Medical Officer at Sub Divisional
Hospital, Kahalgaon and had examined the victim girl on
05.08.2020 at about 12.45 p.m. with her consent and in presence
of the staff of the Police Station and found the following:-
Lower - 14
(B) Breast Developed.
(C) Axillary hair - present.
(D) Pubic hair - present.
(E) No sign of violence present either
external or internal part of Body.
(F) There is no foreign hair present either
on external or internal part of vagina or
vulva or on undergarment.
(G) There is no foreign discharge present
on vagina or vulva or on undergarment.
(H) According to pathological report
from J.L.N.M.C.H. Bhagalpur, no
spermatozoa found in vaginal swab.
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
(I) According to radiological report sent
from J.L.N.M.C.H., age of the
person to be examined is between
fourteen to sixteen years.
(J) According to U.S.G. report there is
intrauterine embryo of 6 week 2 days in
womb.
Clinical inference - Based upon above
clinical finding there is no evidence of
rape.
M/I - A till mark on upper chest."
P.W.16 has identified the said medical report and has
stated that the same has been prepared in her writing and bears
her signature and the same has been marked as Exhibit
P5/PW16.
29. P.W.17 Chanda Lal is the then Judicial Magistrate, 1 st
class, who had examined the victim girl under Section 164
Cr.P.C. P.W.17 has stated in her evidence that on 19.08.2020 she
was posted as Judicial Magistrate, 1st class at Bhagalpur and had
recorded the statement of the victim girl under Section 164
Cr.P.C. in connection with Kahalgaon Ekchari P.S. case
No.18/2020, POCSO case No.81/2020. P.W.17 has further stated
that she had recorded the statement of the victim girl in her
words in presence of her mother and the same was scribed by
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
her, which was read over to the victim girl and her mother,
whereafter the victim girl and her mother had put their signature
over the same. P.W.17 has identified the statement made by the
victim girl under Section 164 Cr.P.C. and has stated that the
same has been written in her writing as also she has identified
her signature, which has been exhibited as Exhibit P6/PW17. In
cross examination, P.W.17 has stated that she had written
exactly whatever was told to her by the victim girl. The victim
girl had disclosed before her that on 13.07.2020 Aman Yadav
(appellant No.1 of the first case) had committed wrong with her,
whereafter other people had also committed wrong with her.
P.W.17 has further stated in her cross examination that it is true
that at the time of recording of the statement of the victim girl,
she had not mentioned the expression over the face of the victim
girl.
30. After closing the prosecution evidence, the learned Trial
Court recorded the statements of the appellants on 14.12.2022
under Section 313 of the CrPC for enabling them to personally
explain the circumstances appearing in the evidence against
them, however in their respective statements, they claimed
themselves to be innocent.
31. The defence had then adduced evidence. D.W.1 Anandi
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Das has stated in his evidence that he was a member of the
Gram Panchayat, Khawaspur in the year, 2020 and at that time
the Sarpanch was Ratan Devi. He has stated that he knows
father of Kundan Kumar Yadav, namely Surendra Yadav @
Mantu Yadav and also knows Ramakant Mandal as also his
daughter, all of whom belong to his village panchayat. He has
stated that Kundan Kumar Yadav had given an application
before the Sarpanch of the Gram Panchayat on 05.06.2020,
which also bears his signature as also the signature of the
Sarpanch, which he has identified and the same has been
marked as Exhibits D1/DW1 and D1/1/DW1. In cross
examination, D.W.1 has stated that the incident dates back to
two and half years. He has also stated that it is not a fact that
false document has been prepared.
32. D.W.2 Rohit Kumar has stated in his evidence that he
knows the victim girl, whose father's name is Ramakant Mandal
and her brother's name is Amarjeet. He has stated that Aman
Kumar (appellant No.1 of the first case) is a driver. In the year
2020, he used to stay at home and the incident had taken place
on 25-26th July, 2020, wherein Aman Kumar had hit a calf,
whereupon scuffle had taken place in between
Ramakant/Amarjeet and Aman, however the villagers had
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
mediated and pacified them. In cross examination, D.W.2 has
stated that Roshan (appellant No.2 of the first case) and Aman
(appellant No.1 of the first case) are brothers.
33. D.W.3 Mohan Yadav has stated in his evidence that he
knows Ramakant Mandal and brother of the victim girl, namely
Amarjeet. D.W.3 has stated that two and half years back he used
to stay in the village and he knows Ramakant Mandal, Amarjeet,
Roshan (appellant No.2 of the first case) and Aman (appellant
No.1 of the first case). He has stated that Aman (appellant No.1
of the first case) is a driver and Roshan (appellant No.2 of the
first case) is studying. He has also stated that two and half years
back a calf was hit by the car of Aman, which belonged to
Ramakant Mandal, whereafter scuffle had taken place in
between both of them and after ten days he came to know that
Ramakant has implicated the accused persons in a false case by
projecting her daughter as a victim. He has also stated that at the
house of Ramakant his cousin nephew stays, whose name is
Nitish and there is talk about the daughter of Ramakant having
some internal relationship with Nitish which had led to the
victim committing suicide by hanging herself. In cross
examination, D.W.3 has stated that he had not seen the victim
girl hanging herself. He has also stated that Roshan (appellant
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
No.2 of the first case) is his nephew and Aman (appellant No.1
of the first case) is a village brother.
34. The trial Court, upon appreciation, analysis and scrutiny
of the evidence adduced at the trial has found the aforesaid
appellants guilty of the offences and has sentenced them to
imprisonment and fine, as noted above, by its impugned
judgment and order.
35. We have perused the impugned judgment of the Ld. Trial
Court, the entire materials on record and have given thoughtful
consideration to the rival submissions made by the learned
counsel for the appellants as well as the learned A.P.P. for the
State. The first and foremost aspect which is required to be
adjudicated is as to whether any evidence is available on record
to prove the guilt of the appellants for the offences with which
they have been charged. A bare perusal of the written report of
the victim girl dated 04.08.2020 would show that on 29.07.2020
at about 6 p.m. in the evening, the appellants of the first case
and one Ankush Kumar Yadav had taken the victim girl inside
the corn field and raped her and similar type of statement has
also been made by the victim girl under Section 161 Cr.P.C.
before the police, however in her statement made under Section
164 Cr.P.C. before the learned Judicial Magistrate, 1st class on
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
19.08.2020, she has narrated a different story to the effect that
firstly on 13.07.2020, Aman Yadav (appellant No.1 of first case)
had committed wrong with her and thereafter, the appellants of
the aforesaid two cases and one Ankush Kumar Yadav had
committed wrong with her, whereafter she was also assaulted,
leading to her becoming unconscious whereupon her brother
and family members had brought her to their house. We also
find that the victim girl had committed suicide on 15.06.2021,
hence she could not be examined as a witness.
36. Thus, we find that except the statement made by the
victim girl under Section 164 Cr.P.C. i.e. Exhibit P6/P.W.17, no
incriminating material is available on record to prove the guilt
of the appellants. As far as testimony of P.W.5 Munilal Yadav
(grandfather of the victim girl), P.W.6 Sauhadri Devi (mother of
the victim girl), P.W.7 Ramakant Mandal (father of the victim
girl), P.W.8 Amarjeet Kumar Mandal (brother of the victim girl),
P.W.12 Laxmikant Mandal (uncle of the victim girl) and P.W.13
Nitish Kumar (cousin brother of the victim girl) are concerned,
they have all stated that the brother of the victim girl, namely,
Amarjeet Kumar Mandal (P.W.8) and P.W.13 Nitish Kumar had
gone to ease themselves on the morning of 30.07.2020 near the
banks of the river Ganges and had found the victim girl in an
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
unconscious state, whereupon they had brought her back to their
house where she had disclosed about the incident to her mother
to the effect that the appellants of the aforesaid two cases and
one Ankush Kumar Yadav had committed rape with her.
However, P.W.10 Vikash Yadav, who is an independent witness,
has stated in his testimony that the daughter of Ramakant
Mandal i.e. the victim girl was having love affair with Nitish
Kumar and Nitish Kumar had eloped with the victim girl,
whereafter she did not return and had died thereafter. Thus
perusal of the written report of the victim girl, her statement
made under Section 164 Cr.P.C. before the learned Magistrate
and the testimony of the aforesaid witnesses would show that
there are serious contradictions which definitely lead to the
inference that their testimony is not trustworthy, more so in view
of the medical evidence adduced by P.W.16 Dr. Punam Mishra,
who had prepared the medical report, after having medically
examined the victim girl on 05.8.2020 and she had found no
sign of violence present either on external or internal part of her
body, had not found foreign hair present on external or internal
part of vagina or vulva or on undergarment, had not found
foreign discharge present on vagina or vulva or on
undergarment, had not found spermatozoa in the vaginal swab,
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
the ultrasound report depicted that the victim girl was carrying
pregnancy of 6 weeks 2 days in the womb and finally she had
opined in her clinical inference that there is no evidence of rape.
37. It is a well settled law that in case of non-availability of
the victim for examination during the course of the trial the case
of the prosecution should not be thrown over board and the
death of the victim and her non-examination cannot be a ground
to acquit an accused if there is cogent evidence, otherwise
available to prove the criminal act of the accused concerned.
Thus, mere fact of non-availability of the victim for examination
cannot be fatal for the prosecution case and the Court should
decide the case on the basis of available evidence. Reference in
this connection, be had to a judgment rendered by the Hon'ble
Apex Court in the case of State of Karnataka Versus
Mahabaleshwar Gourya Naik, reported in 1992 Supp (3) SCC
179. It is equally a well settled law that in absence of substantial
oral evidence corroborated with medical evidence it can be
construed that the appellants shall be presumed to be innocent of
the charged offences and that the statement of the victim
recorded under Section 164 Cr.P.C. can be used for
corroboration or contradiction but cannot be the sole basis for
conviction. Reference in this connection, be had to a judgment
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
rendered by the learned Division Bench of this Court in the case
of Satyamanu Kumar Singh Versus State of Bihar, reported in
2023 SCC Online Pat 5103. Therefore, the law that emerges is
that merely because the victim is dead and consequently could
not be examined, can never be a ground to acquit an accused if
there is evidence otherwise available to prove the criminal act of
the accused concerned and that accused cannot be convicted for
an offence of rape merely by relying upon the statement made
by the victim girl under Section 164 Cr.P.C.
38. Now coming back to the present case, we find that in
absence of availability of the testimony/deposition of the victim
girl on account of her death, though her non-examination would
not be fatal to the case of the prosecution, but then it would have
to be seen as to whether there is evidence otherwise available on
record for proving the criminal act of the accused concerned. In
the present case, the victim girl has given a conflicting
statement with regard to the occurrence inasmuch as in her
written report dated 04.08.2020 and her statement made under
Section 161 Cr.P.C. before the police, she has only stated about
one occurrence of rape to have been committed by the
appellants of the first case and one Ankush Kumar Yadav,
however subsequently in her statement made under Section 164
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Cr.P.C. on 19.08.2020 before the learned Judicial Magistrate, 1 st
class she has stated that firstly she was raped on 13.07.2020 by
Aman Yadav i.e. the appellant No.1 of the first case and
thereafter by the appellants of the aforesaid two cases alongwith
one Ankush Kumar Yadav. We also find from the medical
examination report of the victim girl submitted by P.W.16 Dr.
Punam Mishra that there is neither any sign of violence present
either on external or internal part of the body of the victim girl
nor on external or internal part of vagina or vulva and in fact no
evidence of rape has been found. Thus we find that the medical
evidence specifically rules out the claim of rape to have been
committed with the victim girl, muchless the factum of her
being assaulted by the appellants. Thus, considering the law laid
down by the Ld. Division Bench of this Court in the case of
Pawan Kumar (supra), adverse inference has to be drawn to the
effect that the prosecution's version is not trustworthy.
39. We would like to refer to a judgment rendered by the
Hon'ble Apex Court in the case of R. Shaji v. State of Kerala,
reported in (2013) 14 SCC 266, paragraph Nos.26 and 29
whereof are being reproduced herein below :-
"26. Evidence given in a court under
oath has great sanctity, which is why the
same is called substantive evidence.
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
Statements under Section 161 CrPC can
be used only for the purpose of
contradiction and statements under
Section 164 CrPC can be used for both
corroboration and contradiction. In a
case where the Magistrate has to perform
the duty of recording a statement under
Section 164 CrPC, he is under an
obligation to elicit all information which
the witness wishes to disclose, as a
witness who may be an illiterate, rustic
villager may not be aware of the purpose
for which he has been brought, and what
he must disclose in his statements under
Section 164 CrPC. Hence, the Magistrate
should ask the witness explanatory
questions and obtain all possible
information in relation to the said case.
29. During the investigation, the police
officer may sometimes feel that it is
expedient to record the statement of a
witness under Section 164 CrPC. This
usually happens when the witnesses to a
crime are clearly connected to the
accused, or where the accused is very
influential, owing to which the witnesses
may be influenced.
(Vide Mamand v. Emperor [(Bhuboni
Sahu v. R. [AIR 1949 PC 257], Ram
Charan v. State of U.P. [AIR 1968 SC
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
1270] and Dhanabal v. State of
T.N. [(1980) 2 SCC 84 : AIR 1980 SC
628] )"
40. Thus we find from the materials on record and the
evidence adduced by the prosecution, including the medical
evidence that the statements made by the victim girl in her
written report and statement made under Section 164 Cr.P.C. are
full of contradictions, the prosecution has failed to establish the
foundational facts, medical evidence does not show any sign of
rape qua the victim girl and on the contrary shows that the
victim girl was carrying pregnancy of 6 weeks 2 days in her
womb, which has remained unexplained by the prosecution,
though P.W.10 Vikash Yadav and independent witness have
stated that the victim girl was having love affair with P.W.13
Nitish Kumar, had eloped with her and had become pregnant but
Nitish Kumar had refused to marry her and then she did not
return, which definitely casts a question mark upon the
testimony of the prosecution witnesses, apart from the fact that
though the Investigating Officer of this case P.W.11 Mani
Bhushan Kumar had recorded the statement of several
independent witnesses but they have been withheld by the
prosecution and not produced during the course of the trial,
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
from which adverse inference has to be drawn with regard to the
motive of the prosecution. Hence in the present case, since the
prosecution has failed to lead cogent, credible and trustworthy
evidence to establish the commission of the offence of rape
beyond all reasonable doubts, no presumption arises under
Section 29 of the POCSO Act.
41. Therefore, we find that the learned Trial Judge has
committed a gross error in holding that the prosecution has
established the foundational fact to the effect that the accused
persons have committed penetrated sexual assault/rape upon the
victim and defence has not been able to prove its innocence
beyond all reasonable doubt under Sections 29 and 30 of the
POCSO Act. We also find that the statement recorded under
Section 164 Cr.P.C. is not a substantive piece of evidence,
however the same is a formal statement made before an
authority competent to investigate a fact which may be used for
contradiction under Section 145 of the Indian Evidence Act,
1872 or for corroboration of the witness who makes such a
statement under Section 157 of the Indian Evidence Act, 1872.
Reference in this connection, be had to a judgment rendered by
the Hon'ble Apex Court in the case of State of Rajasthan
Versus Kartar Singh and analogous case, reported in (1970) 2
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
SCC 61. Therefore, we find that the learned Trial Judge has
erred by holding that the statement of the victim girl recorded
under Section 164 Cr.P.C. has been corroborated by the
testimony of P.W.6, P.W.7, P.W.8, P.W.12 and P.W.13.
42. We are thus of the considered view that the prosecution
has failed to prove beyond all reasonable doubts the commission
of offence of rape/gang rape punishable under Section 376DA of
the Indian Penal Code and under Section 5(g)/6 of the POCSO
Act. Thus in the facts and circumstances, as discussed
hereinabove and for the foregoing reasons, we are of the view
that there are compelling reasons in the present case, which
necessitate that the appellants of the aforesaid two cases be
given the benefit of doubt.
43. Accordingly, the finding of conviction recorded by the
Trial Court, in our opinion, is not sustainable and requires
interference, therefore, the judgment of conviction dated
10.02.2023 and the order of sentence dated 04.03.2023, passed
by the learned Court of Exclusive Special Court (POCSO Act)-
cum-7th Additional District and Sessions Judge, Bhagalpur in
POCSO Case No.81 of 2020 (arising out of Ekchari P.S. Case
No.18 of 2020) are set aside.
44. The appellants of both the aforesaid two appeals are in
Patna High Court CR. APP (DB) No.396 of 2023 dt.06-02-2025
custody, hence consequent upon their acquittal by the present
judgment, let them be released forthwith, if not required in any
other case.
45. The aforesaid two appeals are accordingly allowed.
(Mohit Kumar Shah, J)
I agree
Nani Tagia, J. :-
(Nani Tagia, J)
Narendra/Sonal
AFR/NAFR AFR
CAV DATE 23.01.2025
Uploading Date 06.02.2025
Transmission Date 06.02.2025
