Patna High Court
Ranjeet Sah vs The State Of Bihar on 7 October, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.233 of 2023
Arising Out of PS. Case No.-204 Year-2018 Thana- BARAULI District- Gopalganj
======================================================
Ranjeet Sah, S/O Late Paras Sah, R/V- Barauli, Ward No. 9, P.O. and P.S.-
Barauli, District- Gopalganj. ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Amish Kumar, Amicus Curiae
Mr. Prabhakar Kumar Thakur, Advocate
Mr. Satish Kumar Mehta, Advocate
Mr. Raghav Prasad, Advocate
Mr. Amish Kumar, Amicus Curiae
For the State : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 07-10-2025
Heard learned counsel for the appellant, learned Amicus
Curiae and learned Additional Public Prosecutor for the State. We
appreciate that learned Amicus Curiae has rendered his services
pro-bono.
2. Though the informant-victim has entered her
appearance by filing Vakalatanama and the name of Advocate is
appearing in the daily cause list but no one appeared on her behalf
to oppose the appeal.
3. This appeal has been preferred for setting aside the
judgment of conviction dated 05.01.2023 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
18.01.2023 (hereinafter referred to as the 'impugned order')
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
2/41
passed by learned Additional Sessions Judge-VI-cum-Special
Judge (POCSO), Gopalganj (hereinafter referred to as the 'learned
trial court') in POCSO Case No. 91 of 2018, C.I.S. No. 91 of 2018
arising out of Barauli P.S. Case No. 204 of 2018. By the impugned
judgment, the appellant has been convicted for the offences
punishable under Sections 376(3) of the Indian Penal Code (in
short 'IPC') and Section 5(m)/6, 9(m)/10 of the Protection of
Children from Sexual Offences Act (in short 'POCSO Act'). By
the impugned order, he has been ordered to undergo rigorous
imprisonment for twenty years with a fine of Rs.50,000/- under
Section 376(3) IPC and in default of payment of fine, he shall
further undergo three months simple imprisonment. He has also
been ordered to undergo five years rigorous imprisonment under
Section 9(m)/10 of the POCSO Act with a fine of Rs. 20,000/- and
in default of payment of fine, he shall further undergo three
months simple imprisonment. Both the sentences shall run
concurrently.
Prosecution Case
4. The prosecution case is based on the fardbeyan of the
mother of the victim recorded by S.I. Sarita Kumari, SHO, Mahila
P.S. Gopalganj on 09.09.2018 at 15:30 Hours at the Mahila P.S.
Gopalganj. In her fardbeyan (Exhibit '1/1'), the informant (PW-1)
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
3/41
has stated that on 08.09.2018 at about 04:00 PM, her daughter
came crying from 'bathan' which is situated near her house and
after much asking, she fell asleep crying. On the next day i.e.
09.09.2018
, her daughter told her that yesterday at 03:00 PM,
when she was playing near the 'bathan', this appellant came there
and took her to his house to boil milk where he closed the door and
threatened her to kill with a sword, thereafter, committed wrong
act with her. The informant alleged that the appellant threatened
her not to tell this to anyone otherwise he will kill her with sword.
Because of this threat, her daughter did not tell her anything last
night. The informant alleged that a boy of his village, namely, Raju
when heard the crying of her daughter knocked the door of the
appellant and when he opened the door, the victim somehow
managed to escape. The informant alleged that this appellant
committed wrong act with her daughter.
5. On the basis of this fardbeyan, Barauli P.S. Case No.
204 of 2018 dated 09.09.2018 was registered under Sections
376(2) IPC and Section 4/5(m)/6 of the POCSO Act against this
appellant. After investigation, police submitted chargesheet
bearing Chargesheet No. 238 of 2018 dated 17.11.2018 under
Section 376(2) IPC and Section 4/6/8/10 of the POCSO Act.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Thereafter, vide order dated 17.12.2018, learned trial court took
cognizance of the offences under above-mentioned Sections.
6. 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 02.01.2019, charges were framed
under Section 376(2) IPC and Section 5(m)/6 and 9(m)(n)/10 of
the POCSO Act.
7. In course of trial, the prosecution has examined
altogether seven witnesses and exhibited several documentary
evidences. The description of prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Mother of the Victim
PW-2 Victim
PW-3 Raju Kumar
PW-4 Sarita Kumari
PW-5 Dr. Supriya Suman
PW-6 Raju Chaudhary
PW-7 Surendra Ray
List of Exhibits on behalf of the Prosecution
Exhibit '1' Signature of mother of the victim
on Fardbeyan
Exhibit '2' Signature of mother of the victim
on the statement of the victim
recorded by Mahilla Daroga
Exhibit '2/1' Signature of the Victim on the fard-
beyan
Exhibit '2/3' Signature of the Victim on her
statement u/s 164 CrPC
Exhibit '1/1' Fardbeyan related to occurrence
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Exhibit '2/2' Statement of the victim recorded by
Mahila Daroga
Exhibit '3' Medical Report of the Victim
Exhibit '3/1' X-Ray and findings on Medical Re-
port
Exhibit '1/2' Pagination
Exhibit '4' Formal FIR
Exhibit '5' 164 CrPC Statement
8. Thereafter, the statement of the appellant was
recorded under Section 313 of the CrPC. He took a plea that he is
innocent. No oral or documentary evidence has been adduced on
behalf of the Defence.
Findings of the Learned Trial Court
9. Learned trial court, after analysing the evidences on
record found that the the sole testimony of the prosecutrix is
wholly reliable and she comes in the ambit of sterling witness.
Learned trial court found that the mother of the victim and
independent witness as well as other prosecution witness
corroborated the evidence of the victim. Learned trial court found
that the cumulative result of the testimony of PW-1 to PW-6 and
Medical Report (Exhibit '3'), Statement u/s 161 CrPC (Exhibit
'2/2') and Statement u/s 164 CrPC (Exhibit '5') established the
fact that the accused Ranjeet Sah committed rape upon the victim.
10. Learned trial court after considering all the facts and
circumstances of the case found that the prosecution has been able
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
to stand on its own leg and the onus shifts on the defence to prove
contrary but the defence has failed to prove. Accordingly, learned
trial court held the appellant guilty of the offence punishable u/s
376(3) IPC and Section 5(m)/6, 9(m)/10 of the POCSO Act.
Submissions on behalf of the Appellant
11. Learned counsel for the appellant submits that there
is a delay of more than 24 hours in lodging the FIR, which remains
unexplained; such unexplained delay seriously undermines the
prosecution case and casts doubt on its authenticity.
12. It is submitted that there has been non-examination
of certain crucial witnesses, which has seriously affected the
prosecution case. The girl who was allegedly accompanying the
victim at the time of occurrence was not examined during the
course of trial, and significantly, she was introduced for the first
time only in the testimony before the court. Likewise, the
neighbours of the informant, who were specifically named in
various depositions and could have been important independent
witnesses to corroborate the occurrence, were also not examined.
It is further noteworthy that not a single independent witness has
been produced by the prosecution.
13. It is submitted that no clothes of the victim, worn at
the time of the occurrence, were ever seized or subjected to
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
forensic examination. The explanation offered by the prosecution
in this regard is wholly unsatisfactory and creates a serious doubt
about the veracity of the case. Moreover, the appellant was not
medically examined as mandated under Section 53A of the Code
of Criminal Procedure, which is a statutory requirement in cases of
this nature. The non-compliance of this mandatory provision has
caused grave prejudice to the defence and strikes at the root of fair
investigation, thereby weakening the prosecution case.
14. Learned counsel further submits that the ocular
testimony of the victim suffers from serious inconsistencies.
Learned counsel submits that she did not disclose anything about
the alleged occurrence on the very day of its occurrence, and only
narrated the same to her mother on the following day.
Furthermore, there are evident improvements in her deposition
when compared with her statement recorded under Section 164
Cr.P.C. She has also admitted during cross-examination that the
Investigating Officer did not demand or seize the clothes allegedly
worn at the time of occurrence. Importantly, she further admitted
the existence of land dispute between the parties. These material
contradictions, omissions, and admissions create serious doubt
about the veracity of her testimony.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
15. Learned counsel submits that the prosecution has
relied upon the testimony of Raju Kumar (PW-3), who was
examined as an eye-witness. However, his presence at the place of
occurrence appears to be merely by chance and does not stand
established beyond doubt. There are material contradictions in his
deposition. PW-3 himself admits that his residence is situated
about 2 kilometers away from the place of occurrence, yet he
neither informed anyone about the incident on the very day of its
alleged happening nor raised alarm at any stage. Significantly, he
surfaced only during the course of investigation. Such conduct is
unnatural and inconsistent with the normal behavior expected of a
truthful eye-witness. Hence, his testimony does not inspire
confidence and cannot be safely relied upon for sustaining
conviction.
16. Learned Amicus Curiae appointed in this case has
submitted that there are serious and material defects in the conduct
of the trial. It has been pointed out that the trial court, after
recording the statement of the accused under section 313 of the
Cr.P.C., proceeded to alter the charge without informing the
accused/appellant and without affording him any opportunity to
defend himself against the newly altered charge. Such a course
adopted by the trial court is a clear violation of the settled
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
principles of criminal jurisprudence, as the accused has a
fundamental right to be aware of and defend against the specific
accusations brought against him.
17. Learned Amicus Curiae submits that the alteration of
the charge was done solely on the basis of the statement of a
prosecution witness, who was neither further examined nor
subjected to cross-examination in respect of the altered charge.
This omission has caused serious prejudice to the appellant, as the
right of effective cross-examination - a vital facet of fair trial
guaranteed under Article 21 of the Constitution was completely
denied.
18. Learned Amicus has also contended that the trial
court committed a grave error in sentencing the appellant under the
amended provisions of the POCSO Act, which were not in
existence on the date of the alleged occurrence. Such retrospective
application of penal provisions is strictly prohibited in criminal
law, as it violates the constitutional safeguard enshrined under
Article 20(1) of the Constitution of India, which mandates that a
person cannot be convicted or punished under a law that was not in
force at the time of commission of the alleged offence.
19. Thus, the action of the trial court in altering the
charge without due compliance of law, followed by sentencing the
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
appellant under an ex-post facto penal provision, has caused grave
prejudice and miscarriage of justice, thereby vitiating the entire
trial and its outcome.
20. It is further submitted that the victim girl claimed
herself as a student of Kanya Madhya Vidyalaya, Barauli, studying
in class-V but in course of investigation she did not produce any
proof of her age or admission in the school to the I.O. (PW6). PW-
6 was posted as ASI in Barauli police station on 09.09.2018, on
that day he had assumed the charge of investigation of this case. In
paragraph '21' of his deposition, he has stated that during
investigation he had not perused any paper regarding the age of the
victim, the informant side had not given him any paper and he had
only perused the medical report for age verification. It is submitted
that as per the medical report, the victim was aged between 15-16
years. The defence has suggested to the victim (PW-2) that she
was more than 18 years of age on the date of occurrence which the
PW-2 denied. It is submitted that in view of the judgment of the
Hon'ble Delhi High Court in the case of Court on its own Motion
vs. State of NCT of Delhi vs. State of NCT of Delhi (Crl.
Ref.2/2024 judgment dated 02.04.2024) 2024 SC OnLine Delhi
4484 and the Hon'ble Supreme Court in the case of Rajak
Mohammad v. State of H.P. (2018) 9 SCC 248 if the plus minus
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
two years is done to the age of the victim, the upper extremity of
her age would come to 16+2=18 years.
21. Learned counsel further submits that at the fag end
of the trial the prosecution produced CW-7 with a so-called school
admission register of Kanya Madhya Vidyalaya. PW-7 claimed
himself headmaster of the school and had come with some papers
of an admission register of the school with effect from 01.04.2016
till date. It is submitted that at his instance some pages were
marked court exhibit no. 01 (with objection). The pages were
manually paginated only. In course of his cross-examination, this
witness has stated that the entries made on page no.50 at serial
no.66 was done on 26.05.2018 and in the register the basis of the
date of birth of the victim girl was not mentioned. He has also
admitted in his cross-examination that during his tenure the said
register was never produced before any senior officer of the
Education Department. The defence suggested that this admission
register was a forged document and wrong entry had been made in
collusion which this witness denied but the court exhibit no.01 is
not a reliable piece of evidence with regard to the age of the victim
girl.
22. It is submitted that during investigation I.O. had not
recorded the statement of the victim. The learned trial court has
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
treated Exhibit-2/2 as statement of the victim under Section 161
Cr.P.C. which is not a correct approach. Exhibit-2/2 is the beyan of
the victim recorded by PW-4 even prior to the beyan of the
informant (PW-1) but that was not made basis of FIR. PW-6 never
recorded statement of the victim.
23. On the abovementioned grounds, prayer has been
made to set aside the impugned judgment and acquit the appellant.
Submissions on behalf of the State
24. On the other hand, learned Additional Public
Prosecutor for the State has defended the impugned judgment and
order. It is submitted that the learned trial court has examined the
evidences available on the record and found that the allegations
made in the FIR (Exhibit-4) and the statement of the victim under
Section 164 Cr.P.C. (Exhibit-5) corroborate the prosecution
version and nothing substantial could be brought out by the
accused in the cross-examination of either PW-1, PW-2 and PW-3
which may impeach her credibility as to the manner of the
occurrence.
25. It is submitted that the I.O. (PW-6) had verified the
place of occurrence. His deposition has been found corroborated
from the deposition of PW-1, PW-2 and PW-3, Exhibit-2/2 i.e. the
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
statement of the victim under Section 161 Cr.P.C. and Exhibit-4
(FIR).
26. Learned Additional Public Prosecutor further
submits that the age of the victim has been duly proved by PW-7
through court exhibit no.01 (with objection). The trial court has
also taken note of the medical examination report proved by the
doctor (PW-5) who has disclosed that the age of the victim was 15-
16 years at the time of the examination. It is, thus, submitted that
the school admission register of the victim has established that she
was minor below 12 years at the time of occurrence. Thus, it is
contended that the victim comes under the ambit of definition of
"child" as defined under Section 2(d) of the POCSO Act. It is
submitted that the learned trial court has rightly held the victim in
this case a sterling witness. In this connection, reliance has been
placed on the judgment of the Hon'ble Supreme Court in the case
of Vijay @ Chinee Vs. State of Madhya Pradesh (2010) 8 SCC
191 and Rai Sandeep @ Deepu vs. State (NCT of Delhi) (2012)
8 SCC 21. It is contended that in this case the victim would come
in the category of a wholly reliable witness. On the other hand, the
accused has failed to furnish any explanation on the incriminating
evidences associated with him despite an opportunity granted to
him during his examination under Section 313 Cr.P.C.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
27. Learned Additional Public Prosecutor submits that
Section 29 of the POCSO Act raises presumptions that the charged
person has committed or abetted or attempted to commit the
offence unless the contrary is proved. In this case, the defence did
not adduce any oral or documentary evidence as to draw any
inference against the statutory presumptions of Section 29 of the
POCSO Act. It is, thus, submitted that the impugned judgment and
order of the learned trial court are based on reasons supported by
the evidences on the records, hence, no interference is required.
Consideration
28. We have heard learned counsel for the appellant, the
amicus curiae and the learned Additional Public Prosecutor for the
State. As recorded hereinabove, though the informant-victim has
entered appearance by filing vakalatnama but no one appeared on
her behalf to oppose the appeal. This Court has also perused the
trial court records.
29. Before we analyze the evidences on the record and
take a view on the merit of the case, at the outset it would be
appropriate to deal with the submissions of learned amicus curiae
with regard to alteration of charge by the learned trial court after
recording of the statement of the accused under Section 313
Cr.P.C.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
In this case, the FIR was registered under Section 376(2) IPC
and Section 4/5 (m)/6 of the POCSO Act on 09.09.2018 at 20.15
Hrs with respect to the occurrence which took place on 08.09.2018
at about 4.00 PM. After investigation, police submitted
chargesheet under Section 376(2) IPC and Section 4/6/8/10 of the
POCSO Act. Cognizance of the offences were taken vide order
dated 17.12.2018 by the learned Additional Sessions Judge No.1.
On 02.01.2019, charges were framed under Section 376(2) IPC
and under Section 5(m) (n), 6/9 (m) (n)/10 of the POCSO Act. The
Charges were read over and explained in Hindi to the accused, he
pleaded not guilty and claimed to be tried. Thereafter, the
prosecution witnesses were examined and the last prosecution
witness (PW-7) was examined and cross-examined on 21.09.2021
whereafter he was discharged.
On 25.01.2021, statement under Section 313 Cr.P.C. was
recorded. On 04.03.2022, the defence requested the court to close
the defence evidence, accordingly, the defence evidence was
closed. Thereafter, the records of the case was fixed for hearing
and the hearing started which continued on several dates. After
arguments on several dates, one application was filed in the trial
court on 04.11.2022 on behalf of the prosecution with a prayer for
alteration of the charges. A request was made to alter the charge of
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Section 376(2) IPC to Section 376(3) IPC on the ground that on
08.09.2018 Section 376(3) was already there but due to a
typographical error Section 376(2) IPC was mentioned. The said
application was moved on 02.12.2022. On perusal of the order
dated 02.12.2022, it appears that the defence side did not raise any
objection and made a submission that if the charge is altered then
the defence would not cross-examine the prosecution witnesses.
The trial court noted that the date of occurrence is 08.09.2018,
therefore, charge should be framed under Section 376(3) in place
of Section 376(2) IPC. Accordingly, the charge was altered which
the accused denied. The trial court has recorded that because the
defence does not want to cross-examine the wintesses on the
alteration of charge, therefore, the record is fixed for argument.
30. At this stage, this Court would first reproduce
Section 376(2) and 376 (3) IPC as existing on the date of
occurrence, hereunder:-
"376(1) ..................
(2) Whoever,--(a) being a police officer, commits rape--
(i) within the limits of the police station to which such police
officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the
custody of a police officer subordinate to such police officer;
or
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
(b) being a public servant, commits rape on a woman in such
public servant's custody or in the custody of a public servant
subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area
by the Central or a State Government commits rape in such
area; or
(d) being on the management or on the staff of a jail, remand
home or other place of custody established by or under any
law for the time being in force or of a women's or children's
institution, commits rape on any inmate of such jail, remand
home, place or institution; or
(e) being on the management or on the staff of a hospital,
commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits
rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant;or
c
[(i)* * * * ]
(j) commits rape, on a woman incapable of giving consent;or
(k) being in a position of control or dominance over a
woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or
physical disability; or
(m) while committing rape causes grievous bodily harm or
maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may extend
to imprisonment for life, which shall mean imprisonment for
the remainder of that person's natural life, and shall also be
liable to fine.
[c] Omitted, ibid.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Explanation.--For the purposes of this sub-section,--(a)
"armed forces" means the naval, military and air forces and
includes any member of the Armed Forces constituted under
any law for the time being in force, including the
paramilitary forces and any auxiliary forces that are under
the control of the Central Government or the State
Government;
(b) "hospital" means the precincts of the hospital and
includes the precincts of any institution for the reception and
treatment of persons during convalescence or of persons
requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned
to the expression "police" under the Police Act, 1861 (5 of
1861);
(d) "women's or children's institution" means an institution,
whether called an orphanage or a home for neglected women
or children or a widow's home or an institution called by any
other name, which is established and maintained for the
reception and care of women or children.
d
[(3) Whoever, commits rape on a woman under sixteen
years of age shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of that person's natural
life, and shall also be liable to fine:" (underline is mine)
Provided that such fine shall be just and reasonable to meet
the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section
shall be paid to the victim.]]
31. It is evident on reading of the aforementioned
provisions that while Section 376 (2) IPC prescribed a rigorous
[d] Inserted, ibid.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and
shall also be liable to fine, Section 376(3) prescribed rigorous
imprisonment for a term which shall not be less than twenty years,
but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, and
shall also be liable to fine. If a person is convicted for offence
punishable under sub-section(3) of Section 376 IPC, he would
have to suffer minimum sentence of rigorous imprisonment for not
less than 20 years.
32. Section 216 Cr.P.C. provides that any court may alter
or to add any charge at any time before judgment is pronounced.
Section 216 and 217 Cr.P.C. are as under:-
"216. Court may alter charge.
(1)Any Court may alter or add to any charge at any time
before judgment is pronounced.
(2)Every such alteration or addition shall be read and
explained to the accused.
(3)If the alteration or addition to a charge is such that
proceeding immediately with the trial is not likely, in the
opinion of the Court, to prejudice the accused in his
defence or the prosecutor in the conduct of the case, the
Court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
(4)If the alteration or addition is such that proceeding
immediately with the trial is likely, in the opinion of the
Court, to prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a new trial or
adjourn the trial for such period as may be necessary.
(5)If the offence stated in the altered or added charge is
one for the prosecution of which previous sanction is
necessary, the case shall not be proceeded with until such
sanction is obtained, unless sanction has been already
obtained for a prosecution on the same facts as those on
which the altered or added charge is founded.
217. Recall of witnesses when charge altered.
Whenever a charge is altered or added to by the Court
after the commencement of the trial, the prosecutor and
the accused shall be allowed--
(a) to recall or re-summon, and examine with reference to
such alteration or addition, any witness who may have
been examined, unless the Court, for reasons to be
recorded in writing, considers that the prosecutor or the
accused, as the case may be, desires to recall or re-
examine such witness for the purpose of vexation or delay
or for defeating the ends of justice;
(b) also to call any further witness whom the Court may
think to be material."
33. In the case of R. Rachaiah vs. Home Secretary,
Bangalore (2016) 12 SCC 172, the appellant-accused were
initially charged under Section 306 and 365 read with 34 IPC.
Trial proceeded on the basis of those charges. After 27 prosecution
witnesses were examined, the prosecution filed application under
Section 216 Cr.P.C. for framing of additional charge under Section
302 IPC. Application was resisted by appellants, however, their
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
objections were rejected and trail court framed alternative charge
under Section 302 read with Section 34 IPC. The appellants were
not convicted of the original charge framed under Section 306 or
Section 365 IPC, instead the appellants were convicted in respect
of alternative charge under Section 302 IPC. Likewise, they were
charged under Section 365 IPC but the conviction was recorded
under Section 364 IPC. The High Court upheld the conviction but
the Hon'ble Supreme Court in paragraph '9' of its judgment held
that the conviction under Section 302 IPC was clearly vitiated as
the same was in violation of the mandatory procedure prescribed
under Sections 216 and 217 of the Code. Paragraph '10' and '11'
of the judgment reads as under:-
"10. The bare reading of Section 216 reveals that though
it is permissible for any court to alter or add to any charge
at any time before judgment is pronounced, certain
safeguards, looking into the interest of the accused person
who is charged with the additional charge or with the
alteration of the additional charge, are also provided
specifically under sub-sections (3) and (4) of Section 216
of the Code. Sub-section (3), in no uncertain term,
stipulates that with the alteration or addition to a charge if
any prejudice is going to be caused to the accused in his
defence or the prosecutor in the conduct of the case, the
Court has to proceed with the trial as if it altered or added
the original charge by terming the additional or alternative
charge as original charge. The clear message is that it is to
be treated as charge made for the first time and trial has to
proceed from that stage. This position becomes further
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
clear from the bare reading of sub-section (4) of Section
216 of the Code which empowers the Court, in such a
situation, to either direct a new trial or adjourn the trial for
such period as may be necessary. A new trial is insisted if
the charge is altogether different and distinct.
11. Even if the charge may be of same species, the
provision for adjourning the trial is made to give
sufficient opportunity to the accused to prepare and
defend himself. It is, in the same process, Section 217 of
the Code provides that whenever a charge is altered or
added by the court after the commencement of the trial,
the prosecutor as well as the accused shall be allowed to
recall or resummon or examine any witnesses who have
already been examined with reference to such alteration
or addition. In such circumstances, the court is to even
allow any further witness which the court thinks to be
material in regard to the altered or additional charge."
34. In the case of Sabbi Mallesu and others Vs. State
of A.P. (2006) 10 SCC 543, as regards the alteration of charge the
Hon'ble Supreme Court observed in paragraph '18' and '19' as
under:-
"18. Having considered the materials on record and
keeping in view the submissions made at the Bar, we are
of the opinion that not only no case has, thus, been made
out to interfere with the judgment of acquittal passed as
against the respondents in Criminal Appeal arising out of
SLP(Crl.) No. 4438/2004 but also the judgment of
conviction and sentence passed against the appellants
Nos. 3 and 4 in Crl. Appeal No. 784/2004 herein are not
sustainable as they are entitled to be given benefit of
doubt as no overt act had been attributed as against them.
We are also not in a position to subscribe to the
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
submissions made by the learned counsel appearing on
behalf of the State that the trial Court in a case of this
nature was entitled to alter the charges under Section 246
of the Criminal Procedure Code.
19. The power of the Court to alter the charges is neither
in doubt nor in dispute but in terms of sub-section (2) of
Section 246, Criminal Procedure Code, it was obligatory
on the part of the learned Sessions Judge to bring it to the
notice of the accused and explain the same to the
accused. The same having not been done, it cannot be
said that the requirements of Section 246 of the Criminal
Procedure Code stood complied with. It must also be
borne in mind that all accused were acquitted for
commission of an offence under Section 147 of the
Indian Penal Code."
35. We have perused the trial court records and have
noticed that there is one page application on behalf of the
prosecution signed by Spl.P.P. on 04.11.2022 in which prayer has
been made to alter the charge to one under Section 376(3) IPC in
lieu of 376(2) IPC on the ground that by mistake of typist 376(2)
has been typed in lieu of 376(3) IPC. The application has,
however, not been acknowledged/shown received by the learned
defence counsel. There is no endorsement that the defence counsel
had no objection to the same. It is also evident that after alteration
of charge the accused-appellant was not given any further
opportunity under Section 313 Cr.P.C. Despite all this, since the
order dated 02.12.2022 of the trial court specifically records that
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
the defence did not want to examine the witnesses on recall, we
would not rest our judgment on this ground.
Age of the victim
36. It is evident that the age of the victim (PW-2) in this
case was required to be determined by the learned trial court
keeping in view the evidences available on the record. There were
two kind of evidences, one was the court exhibit no.01 (with
objection) and the second one was the medical examination report
proved by the doctor (PW-6). The defence had suggested that the
victim (PW-2) was aged more than 18 years of age and had raised
objection with regard to court exhibit no.01 on various grounds but
this Court finds that in its judgment the learned trial court has
taken note of the statement of the victim and the school register,
her age has been taken as below 12 years at the time of occurrence.
The trial court has not at all considered the objections before
accepting the court exhibit no.01 as a wholly reliable document. In
this regard, the defence made the following submissions in its
written notes of argument:-
(i) the alleged admission register was dated 26.05.2018
whereas the alleged date of occurrence was 08.09.2018 (ii) PW-7
in his cross-examination had admitted that there was no basis of
alleged date of birth of the victim shown in the admission register
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
(iii) PW-7 had further deposed in para 7 that all the columns of the
said register had not been filled up, some of the columns and some
of the pages were blank and subsequent pages had got entries (iv)
PW-7 had admitted vide para 9 to 11 that there were various
cutting and interpolations in the so-called entries in the admission
register without its proper authentications. A specific submission
was made that the above facts would render the so-called
admission register highly vulnerable and as per the judgment of
the Hon'ble Supreme Court in the case of Shri Umed vs. Raj
Singh and others reported in AIR 1975 SC 43 (paragraph 14 and
15) no reliance can be placed on such documents. Paragraph '14'
and the relevant part of paragraph '15' of the judgment in the case
of Shri Umed (supra) are reproduced hereunder for a ready
reference:-
"14. A crude attempt was further made by another
sympathizer of the Arya Sabha to give added credence to
the writing Ext. P.W. 5/1. That is P.W. 10 Munshi Ram.
He claims to have run the election office of the appellant
during the election campaign and in the course of his
duties he kept, what is called, a Register which is P.W.
19/1. The Register describes itself as a ""Register of
Vehicles--arrivals and departure from 28-2-1972 to 15-3-
1972""., It is true that some entries have been made with
regard to vehicles therein but alongwith them other
memos are also to be seen in some places and there are
entries for some payments also. It was an unpaged book
before it was produced in court. It was paged by order of
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
the learned Judge. Pages 39 to 42 relate to entries
showing the distribution of voters lists and other
materials to the workers of the appellant. The appellant
has accepted these entries as genuine but so far as the
other entries are concerned they are not accepted by the
appellant. In fact the appellant put forward the case that
all the other entries were fabrications made by Munshi
Ram after the election. We do not think that the appellant
is telling the truth in that respect. Many entries may be
quite true but the book cannot be described as a book
kept in the regular course of business. It is kept in a
shoddy manner and most irregularly. Many odd entries
have been made at odd places. Some entries and memo,
important from our point of view, have the distinct
appearance of interpolations. The book is not kept
continuously. After making some entries on some pages
many pages are left blank and then further entries are
made. Then again long notes and memos in Urdu are
entered in a queer fashion not merely in the reverse order
as Urdu books are written but also after turning the book
topsy-turvy. We cannot, therefore, allow this
memorandum book the dignity of a book written in the
regular course of business. No memo or entry made
therein can be accepted, as reliable unless the court is
satisfied about the time at which or the circumstances in
which it was made or the contest in which it appears. We
have no doubt at all, though it was denied by witness
Munshi Ram, that he made this book available to the
petitioner who produced it alongwith the petition. Some
of the entries were deliberately introduced with a view to
help the election petitioner.
15. Having thus seen that the so-called register P.W. 19/1
is not reliable in itself we have now to refer to a long
entry made therein in Urdu which seems to have
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
considerably impressed the learned Judge on this subject
of payment of Rs. 1,000/-....."
(underline is mine)
37. We have also perused the pages of the so-called
school admission register which has been brought on record in this
case. By no stretch of imagination, it would inspire confidence of
this Court. The pages are not printed in the same and one style, the
serial number of the pages are not printed as is generally done in
case it forms part of a register. The pages have been manually
given serial number. On page '50' the name of the victim girl is
mentioned at serial no. '66' but the page number of the admission
register manually marked (8) contains the names from serial no.67
to 88. On page '50' serial no. '66' containing the name of PW-2
has been encircled and in the left hand column "T.C. issued" has
been recorded but without any signature of any teacher or date.
Column 14 of the admission register manually shown as page 51
in case of victim (PW-2) records " पांचवा". This register was
brought on record to demonstrate that PW-2 was a student of the
school in fifth class and was admitted there on 26.05.2018
showing her date of birth as 01.01.2007. The pages of the
admission register as adduced in evidence are apparently separate
sheets and not from any register. This is also not the school
admission register of the victim (PW-2) which she had first
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
attended. The pleas raised by defence as regards genuineness of
the entries made in respect of the age of the victim cannot be
brushed aside. In the cases under POCSO Act the principle that
presumption must prove the guilt beyond all reasonable doubt is
not done away with. The trial court relied upon it without
considering the objection. In our opinion, it would not be safe to
attach any evidentiary value to these pages of so-called admission
register (court exhibit no.01). It does not fall within the scheme of
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 which is required to be followed in the matter
of age assessment of a victim or a child in conflict with law.
38. As regards the assessment of age of a victim in a
POCSO case, the Hon'ble Delhi High Court has in the case of
Court on its own Motion (supra) held as under:-
"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
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
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."
39. In the case of Rajak Mohammad (supra), the
Hon'ble Supreme Court has held as under:-
"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."
40. In view of the aforementioned judicial
pronouncements when we consider the age of the victim (PW-2)
taking her age as disclosed in the medical examination report, the
upper extremity of the age would come to 18 years. Thus, in our
considered opinion, the learned trial court has committed grave
error in relying upon the court exhibit no.01 and thereby taking a
view that the victim girl was below 12 years on the date of
occurrence.
Fardbeyan of the victim- not made basis of the F.I.R.
41. At this stage, we would briefly examine the evidence
as adduced by the prosecution in this case. We have noticed that a
fardbeyan of the victim (X) was recorded by S.I. Sarita Kumari
(PW-4) who was the SHO of Mahila police station, Gopalganj, on
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
09.09.2018 at 15.00 hrs at Mahila police station, Gopalganj but
that is not the basis of registration of FIR. FIR has been registered
on the basis of fardbeyan of the mother of the victim (X) which
was also recorded by same PW-4 at 3.30 PM. There is no
explanation for this. According to the victim 'X' (PW-2) she was
playing near a Bathan at some distance from her house in between
3-4 PM on 08.09.2018. In her evidence, the victim has disclosed in
paragraph '17' of her deposition that her house is situated at a
distance of 40-50 steps from the Bathan and in between her house
and Bathan there are houses of two persons namely, Kashi and the
name of another person she did not remember.
Place of occurrence
42. It is her further case in the fardbeyan that the
appellant who is aged about 24 years came near her and told her
that his mother had gone in Shiv charcha, therefore, she should
boil the milk in his house. She came into his words and along with
him she went inside his house where there was no one else. As
regards the place of occurrence, the victim (PW-2) has stated in
her deposition in paragraph '16' that the place of occurrence is at a
distance of 30 steps from Bathan and in between the two places,
the houses of four persons are there, those are of (1) Mahavir (2)
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Dipiak Sah (3) Umesh and (4) Naresh Sah. She has also stated that
in all these four houses family members were residing.
Occurrence-not disclosed by victim to her mother
on returning home.
43. The Victim 'X' has further stated in her fardbeyan
that inside the house the appellant threatened her with a sword,
locked the door from inside, lifted his lungi, untied her trouser and
committed wrong act with her. She has also stated that when she
was weeping and crying then one boy of the village, namely, Raju
(PW-3) got opened the door whereafter she went to her house
weeping and crying, her mother asked her but she was very much
afraid so she did not tell her anything and slept in the night. Next
day, she disclosed the occurrence to her mother then her mother
and father came to the police station and told the entire occurrence
in the police station.
Introduction of Isha subsequent to the fardbeyan
44. This Court finds that in her statement under Section
164 Cr.P.C. PW-2 introduced one Isha as her companion when
Ranjit Sah told her to boil the milk in his house. In course of trial,
for the first time, she said that she along with Isha had gone inside
the house of Ranjit Sah. Ranjit sent Isha to a shop to bring Shikhar,
then closed the door and confined her in the room whereafter he
had forcibly committed rape with her. It is evident from the
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
fardbeyan of the victim that her mother and father had gone to the
police station and they had told the entire things in the police
station but Isha was brought into picture one day after the
registration of FIR. Her (X) fardbeyan was recorded after almost
24 hours of the occurrence, fardbeyan of her mother was also
recorded and both were sent to Barauli police station where the
case was registered on 09.09.2018 at 20.15 hours. In paragraph '7'
of her examination-in-chief, PW-2 has categorically stated that in
Mahila police station her mother had made a statement, then the
Daroga of the Mahila police station had read over the application
and made her to understand, thereafter her mother had put her
signature and her father had also put his thumb impression. This
Court finds that the fardbeyan of the victim has been recorded by
the same S.I. Sarita Kumari on 09.09.2018 at 15.00 hours and at an
interval of 30 minutes beyan of her mother was recorded at 15.30
hours. The FIR has, however, been registered showing the mother
of the victim (PW-3) as the informant of the case. By no stretch of
imagination the fardbeyan of 'X' (Exhibit-2/2) may be taken as her
statement under Section 161 Cr.P.C. Thus, the trial court is not
correct in taking exhibit-2/2 as her statement under Section 161
Cr.P.C.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
45. The I.O. (PW-6) has stated in his evidence that he
had taken over charge of the investigation on 09.09.2018 and had
reached the place of occurrence on the same day at 9.45 PM. He
had recorded the statement of the informant (PW-1) and the
statement of the witnesses Raju (PW-3) and Isha (not examined).
He has stated to have inspected the place of occurrence at the
instance of the informant and the witnesses. In paragraph '17', he
has stated that at the time he reached the place of occurrence, there
was a deep darkness, the door was opened by the brother of the
accused. The mother and brother of the accused were present in
the house. He had seen the room in which the occurrence was
allegedly committed but he had not found any suspicious material
there. He had not recorded the size of the room and the articles
kept in the room in the case diary. He had also not recorded the
boundary of the room in which the occurrence had taken place. In
paragraph '18' of his deposition, he has recorded that he had not
recorded any statement of the persons in the houses situated in the
boundary of the place of occurrence. The I.O. has clearly stated in
his deposition in paragraph '15' that he had not mentioned in the
case diary the time when he had left the police station for going to
the place of occurrence and the time at which he reached the place
of occurrence. With him, Munna Singh, Mahal Dafadar had gone
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
to the place of occurrence from the police station. He was only two
persons who had gone there. He had not recorded the statement of
Munna Singh, Mahal dafadar during investigation.
46. It is evident from the deposition of the I.O. that even
though he claims to have visited the place of occurrence but his
statement on this point seems to be highly doubtful. He is not
mentioning the time of reaching the place of occurrence, he is
going to the place of occurrence only with Mahal dafadar who has
not been examined, he is not giving the boundary of the room in
which the alleged occurrence is said to have taken place, he is not
giving even the size of the room and he has not examined any
person residing in the houses which are there in the boundary of
the place of occurrence. In paragraph '25' of his deposition, this
witness has categorically stated that during his entire investigation,
he had not recorded the statement of the victim girl. We, therefore,
find that after taking charge of the investigation of the case, the
I.O. (PW-6) did not record the statement of the victim under
Section 161 Cr.P.C. Her fardbeyan recorded by S.I. Sarita Kumari
(PW-4) in Mahila police station has been taken note of by the
learned trial court to mean and understand that this is her statement
under Section 161 Cr.P.C. We are afraid that such a view would be
unknown to the criminal jurisprudence and the scheme of the Code
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
of Criminal Procedure. A bare perusal of 162 Cr.P.C. would show
that sub-section (1) of Section 162 clearly mandates that "No
statement made by any person to a police officer in course of an
investigation under this Chapter, shall, if reduced to writing, be
signed by the person making it; nor shall any such statement or
any record thereof, whether in a police diary or otherwise, or any
part of such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any
offence under investigation at the time when such statement was
made..."
47. If the victim was not with the I.O. (PW-6) at the time
of inspection of the place of occurrence then who took him to the
room where alleged occurrence had taken place. Only victim could
have identified the actual place of occurrence.
48. The victim had made her statement under Section
164 Cr.P.C. The said statement was recorded on 10.09.2018. In her
statement, she has stated that she and Isha were playing and
thereafter she has stated that the accused had caught hold of her,
opened her pant and he opened his own lungi and slammed her
down on the chowki and touched her lower part, caught her and
came over her, when Isha came then he did not open the door then
she brought Raju Mama (PW-3), she claimed that he got the door
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
opened and got her out. In course of trial, PW-2 has not stated that
Isha had called Raju Mama and he got the door opened rather she
said that when she was weeping and crying then one boy namely,
Raju from the village got the door opened whereafter she ran away
to her house weeping and crying.
49. Isha has not been examined in course of trial. In
course of trial, PW-2 states that Isha had also gone inside the
house of the accused-appellant but she was sent to a shop to bring
gutka. Isha was a material witness in this case but has been
withheld by the prosecution. The I.O. has categorically stated in
his deposition that the witness Raju Kumar, Isha Kumari and
Ranju Devi, none of them had made statement before him that the
accused had committed rape with the victim.
50. At this stage, when we take a glance over the
evidence of Raju (PW-3), we find that he claims himself a chance
witness. He is a vendor who was going to Barauli Bazar to bring
vegetable. On way, he claims to have/had stopped to ease out
behind the house of the appellant where Isha came shouting and
told him that the appellant had locked the victim whereafter PW-3
claimed that he went to the house of the appellant and pushed the
door opened whereafter the victim started weeping saying mama-
mama and told him that the appellant had committed rape on her.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
Thus, PW-3 claims that he himself got the door opened by pushing
the door whereas the victim girl claimed in paragraph '28' of her
deposition that at the time of occurrence the door was closed from
inside and the accused had opened the door. PW-3 did not choose
to go to the house of the victim to tell about the occurrence to her
mother. He simply told the victim to go and tell the occurrence to
her mother and father. This seems to be a highly unnatural
conduct of PW-3 who, later on, in course of his cross-examination
drastically improved upon his statement and claimed in paragraph
'15' of his deposition that he had seen committing rape by her own
eyes. His attention was drawn towards his previous statements
made before police in which he had not stated that the appellant
had committed rape upon the victim girl, this witness denied the
suggestion of the defence but I.O. (PW-6) has categorically stated
that Raju had not made statement before him that the appellant had
committed rape upon the victim.
51. It is evident that PW-3 has his house at a distance of
1-1 and ½ kilometer from the place of occurrence. His house is in
mohalla Sundarnagar whereas the house of the appellant is in
mohalla Barauli Bazar. He is not able to give the correct boundary
of the place of occurrence. The defence suggested him that he
happens to be Mama in relation of the victim, therefore, he was
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
falsely deposing in this case. The conduct of PW-3 raises a
suspicion as to his actual presence at the place of occurrence at the
time when the victim girl claims to have been locked inside the
room by the appellant. He has stated that the appellant had pushed
him causing injury on his head whereafter he had taken treatment
of that injury, still he is not going to the house of the victim which
is only after 4-5 houses from the place of occurrence and hardly
within 50-70 steps and then not bringing on record any medical
paper showing his treatment for any injury would only add to the
disbelief of this Court that this witness has been introduced in this
case with an afterthought to support the prosecution case. No one
from the vicinity of the house of the appellant has claimed that the
victim girl was seen going inside the house of the accused. The
defence has suggested that she was more than 18 years of age and
her medical examination report (Exhibit -3/1) clearly suggests that
there was no mark of sexual violence on the private part of the
victim. There was also no tear or laceration in the component of
the vagina. It was also found that the victim was habitual to sexual
intercourse. We have noticed from the evidence of the doctor (PW-
5) that the following opinion were given by the doctor:-
"Opinion-
(i) X-ray Findings-B/L wrist AP-Lower and epiphy is of
Radius and Ulna appeared and fusion not started.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
(ii)Pelvis AP-Iliae crest epiphysis appeared and fusion not
started.
(iii) There is no evidence of Hymen Vaginal wall lax non
tender seems like habitual sexual relationship made.
(iv) No tear or laceration seen.
(v) she is not virgin.
(vi) Age is between 15 to 16 years."
52. In her cross-examination, PW-5 has clearly stated
that there was no mark of sexual violence on the private part of the
victim, there was no tear or laceration in the component of the
vagina. It is, thus, evident that so far as the medical examination of
the victim is concerned, the doctor has not found any sign of
recent sexual act, though the victim was habitual to sexual
intercourse. It is further found that the appellant in this case was
arrested immediately on the next day i.e. on 10.09.2018 but he was
not taken for medical examination. The I.O. has stated that during
the investigation he had not seized the clothes worn by the victim
at the time of occurrence because the informant side had not
produced the clothes.
53. In the kind of the evidences on the record, this Court
finds that the prosecution has not been able to prove that there was
any penetrative sexual act by the appellant with the victim (X). We
have also noticed that while in her examination-in-chief the victim
has stated that the appellant lifted his lungi and committed wrong
act with her, in her own cross-examination, the victim has stated in
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
paragraph '34' that the accused was wearing a towel. The defence
has suggested all the prosecution witnesses that it is a case of false
implication because of land dispute as the prosecution side was
trying to usurp the land of the accused which is adjacent to his
house and for this reason a false case has been concocted in
connivance between PW-2 and PW-3.
54. On overall analysis of the evidences on the record,
we are of the considered opinion that in this case neither the age of
the victim girl has been properly assessed by the learned trial court
nor the ocular and documentary evidences on the record have been
duly appreciated. The testimony of the victim does not inspire
confidence, PW-3 claims that when he pushed opened the door of
the appellant, the victim told her that the appellant had committed
rape on her, still his conduct in not informing this occurrence to
the family of the victim and then not going with them to the police
station even on the next day would compel this Court to take a
view that he has been introduced in this case with an afterthought.
The witnesses being untrustworthy, the delay of more than 24
hours in a case where PW-3 claims herself a witness of the
circumstances at place of occurrence would further go against the
prosecution. In these materials, it would not be safe to sustain the
findings of the learned trial court.
Patna High Court CR. APP (DB) No.233 of 2023 dt.07-10-2025
55. In result, we set aside the impugned judgment and
order and acquit the appellant of the charges giving him benefit of
doubt.
56. The appellant is said to be in custody, hence he is
ordered to be released forthwith, if not wanted in any other case.
57. The appeal is allowed.
58. Let a copy of the judgment along with the trial court
records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Sourendra Pandey, J)
Sushma2/Arvind
AFR/NAFR
CAV DATE 24.09.2025
Uploading Date 07.10.2025
Transmission Date 07.10.2025
