Patna High Court
Lal Babu Paramhans vs The State Of Bihar on 8 October, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.374 of 2023
Arising Out of PS. Case No.-23 Year-2019 Thana- MAHILA PS District- Darbhanga
======================================================
Lal Babu Paramhans Son of Sitaram Mahto Resident of Village - Sisho West,
P.S.- Sadar (Mabbi O.P.), District - Darbhanga.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mrs. Shama Sinha, Advocate
Mr. Surya Prakash, Advocate
Mr. Vijayansh Pratap Singh, Advocate
Ms. Aprajita, Advocate
For the State : Mr. Parmeshwar Mehta, APP
For the Informant : Mrs. Smiti Bharti, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 08-10-2025
Heard learned counsel for the appellant, learned counsel
for the informant and learned Additional Public Prosecutor for the
State.
2. The present appeal has been preferred for setting
aside the judgment of conviction dated 07.02.2023 (hereinafter
referred to as the 'impugned judgment') and the order of sentence
dated 17.02.2023 (hereinafter referred to as the 'impugned order')
passed by learned Exclusive Special Judge (POCSO Act),
Darbhanga (hereinafter called the 'learned trial court') in POCSO
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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G.R. Case No. 16 of 2019 arising out of Darbhanga (Mahila) P.S.
Case No. 23 of 2019.
3. By the impugned judgment, the appellant has been
convicted for the offence punishable under Sections 376(3), 506 of
the Indian Penal Code (in short 'IPC') and Section 6 of the
Protection of Children from Sexual Offences Act (in short
'POCSO Act'). By the impugned order, he has been sentenced to
undergo rigorous imprisonment for thirty years with a fine of
Rs.30,000/- under Section 376(3) IPC and in default of payment of
fine, he shall further undergo simple imprisonment for six months.
He has also been sentenced to undergo rigorous imprisonment for
thirty years with a fine of Rs.30,000/- under Section 6 of the
POCSO Act and in default of payment of fine, he shall further
undergo simple imprisonment for six months. He has further been
sentenced to undergo one year rigorous imprisonment with a fine
of Rs.5,000/- under Section 506 IPC and in default of payment of
fine, he shall further undergo simple imprisonment for one month.
All the sentences are to run concurrently.
Prosecution Case
4. The prosecution case is based on the written
application of the informant who is the mother of the victim (PW-
1) submitted to the S.H.O., Mahila Police Station, Laheriasarai,
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Darbhanga. In her written application, she has stated that in the
evening at about 7:00 pm on 24.03.2019, Lal Babu Parmahans
who is residing in front of her house has committed rape upon her
daughter (PW-2) in mango orchard and on hearing her cry, some
villagers went there then found her anxious and the villagers saw
Lal Babu Paramhans running from there. The informant asked her
daughter then she disclosed weeping that earlier also the appellant
had committed rape with her and threatened to kill her parents by
showing pistol on disclosure of this matter to them. The informant
alleged that they are musclemen and after the occurrence, the
entire family of the appellant threatened the informant on visiting
her house and offered money to settle the dispute.
5. On the basis of this written application, Mahila P.S.
Case No. 23 of 2019 dated 26.03.2019 was registered under
Sections 376, 506 IPC and Section 4, 6 of the POCSO Act against
the appellant. After investigation, Police submitted chargesheet
bearing No. 95 of 2019 dated 25.09.2019 against this appellant
under Sections 376, 506 IPC and Section 4, 6 of the POCSO Act.
On the basis of the chargesheet, learned trial court vide order
dated 17.02.2020 took cognizance of the offences punishable
under above-mentioned sections. Charges were read over and
explained to the appellant in Hindi to which he pleaded not guilty
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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and claimed to be tried. Accordingly, vide order dated 09.01.2021,
charges were framed under Sections 376(3), 506 IPC and Section 6
of the POCSO Act.
6. In course of trial, the prosecution examined as many
as nine witnesses and exhibited several documents to prove it's
case. The list of the prosecution witnesses and the list of exhibits
are being shown hereunder in tabular form:-
List of Prosecution Witnesses
PW No. Name of Witnesses Detail of witnesses
PW-1 Ms. Z The mother of the
victim/informant in this
case
PW-2 Ms. X The victim/injured in this
case
PW-3 Mr. Y The father of the victim
PW4 Ram Pukar Sahni Other witnesses
PW5 Nurul Nadaaf Other witness
PW6 Ram Jatan Mahto Other witness
PW7 Munni Kumari Investigating Officer (IO)
of this case.
(Police Witness)
PW8 Dr. Alka Mishra The Medical Officer
(MO) of this case who
has conducted the
medical examination of
victim.(Medical Witness)
PW9 Vikash Kumar Jha I/C Principal of Rajkiya
Madhaya Vidalya
Sisodih, Darbhanga.
List of Exhibits produced on behalf of Prosecution
Ext-P-1/PW1 Signature of mother of victim/informant PW1 (Ms. Z) in
this case on written application.
Ext-P-2/PW2 Signature of victim PW2 (Ms. X) on her statement recorded
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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u/s 164 of Cr. P.C.
Ext-P-3/PW3 Signature of father of victim (PW3) (Mr. Y) on written
report.
Ext-P-4/PW7 Endorsement in writing and signature of SHO on the
written application of informant.
Ext-P-5/PW7 Whole Formal FIR.
Ext-P-6/PW8 Entire medical Report in writing and signature of medical
officer (PW8)
Ext-P-7 Entire statement of victim recorded u/s 164 Cr.P.C.
Ext-P-8/PW9 The entry and date of birth mentioned in admission register
regarding admission of victim in primary school where the
victim had enrolled for schooling.
7. Thereafter, the statement of the appellant was recorded
under Section 313 of the CrPC. He took a plea that he is innocent.
The defence examined one witness, namely, Yogendra Mahto (DW-
1) and produced several documentary evidences. List of Exhibits
brought on behalf of the Defence is mentioned in tabular form
hereunder:-
List of Exhibits on behalf of Defence
Ext-D-1/DW1 Copy of application dated 14-03-2019 of
accused Lal Babu Paramhans filed before
Circle officer, Sadar of Darbhanga
regarding dispute of drainage.
Ext-D-2/DW1 Identity Card issued to Lal Babu
Paramhans regarding election of member of
Panchyat Samiti, Sishodih Paschimi.
Ext-D-3/DW1 Entry card of Lal Babu Paramhans issued
by election officer.
Ext-D-4/DW1 Original Scrutiny certificate issued by
election officer.
Ext- D-X/DW1 The photocopy of statement of election
result of member of Panchayat Samity
Shisho Paschimi.
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Findings of the Learned Trial Court
8. Learned trial court after appreciating the evidences
available on the record found that the victim in her testimony
before the court has substantially supported the allegation and
charges against the accused. The victim has also corroborated her
previous statement made under Section 164 Cr.P.C. Learned trial
court found that the parents of the victim has also supported the
case of the prosecution and the statement of the victim who came
to know about the occurrence from the victim just after the
occurrence.
9. Learned trial court found that the FIR was promptly
lodged and minor discrepancies and exaggeration can not done
away the statement of victim and statement of her parents.
10. Learned trial court found the statement of the victim
and her parents quite trustworthy and true disclosure of the facts,
hence the occurrence and the allegation against accused that the
accused has committed rape with the victim who was below the
age of 16 years at the time of occurrence and the accused has also
committed aggravated penetrative sexual assault with the victim
more than once which has been duly proved by the prosecution.
Accordingly, learned trial court convicted the appellant and
sentenced him as stated above.
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Submissions on behalf of the appellant
11. Mrs. Shama Sinha, learned counsel for the appellant,
has assailed the impugned judgment and order on various grounds.
It is submitted that in this case, the learned trial court has not
assessed/determined the age of the victim girl in accordance with
law. For purpose of determination of age, a photocopy of School
Transfer Certificate was produced, which was marked 'X' at the
instance of the I.O. (PW-7). I.O. has stated that this photocopy was
made available to him by the parents of the victim. Referring to
the evidence of the In-charge Principal of Rajkiye Madhya
Shishodih, Darbhanga (PW-9), learned counsel submits that PW-9
produced admission register of the school pertaining to the year
2012-2017 and submitted that the victim was admitted in the said
school in Class-VI on 10.04.2015. In the said admission register,
the date of birth of the victim was mentioned as 16.10.2004,
however, PW-9 has admitted in paragraph '5' of his deposition that
no basis of entering the date of birth in the register is mentioned.
He has further stated that normally the guardians get admitted their
wards in the school by reducing the age to 2-3 years.
12. Learned counsel submits that in view of the judicial
pronouncements on the subject, the age determination has to take
place in terms of the Scheme of Section 94 of the Juvenile Justice
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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(Care and Protection of Children) Act, 2015 (hereinafter referred
to as the 'J.J. Act'). In this case, the first school admission register
was not produced and the School Transfer Certificate cannot fit in
the scheme of Section 94 of the J.J. Act. In this regard, reliance has
been placed on the judgment of the Hon'ble Supreme Court in the
case of P. Yuvaprakash vs. State Represented by Inspector of
Police reported in 2023 SCC OnLine SC 846.
13. Learned counsel further submits that a bare reading
of the evidence of the informant (PW-1) it would appear that she
has lodged the case on the basis of the information furnished to her
by the victim girl. The initial case of PW-1 was that the appellant
had taken the victim girl to the orchard on 24.03.2019 at 7:00 PM
and had committed rape on her. At that time, some villagers heard
the shouts of the victim girl and went there where the victim was
found ill-tempered. She asked her daughter as to what happened
then she told that earlier also the appellant had committed wrong
with her and had said that if she would disclose it to her parents,
then he would shoot her parents and her. He had also shown the
pistol and he is said to be an influential person. She also alleged
that after the occurrence, all the family members of the appellant
came to her house and threatened her to hush up the matter for
some consideration. In course of trial, however, she has stated that
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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she heard hulla and rumour about the occurrence whereupon she
asked her daughter as to what had happened and then she told the
entire story. She has stated that the written information was written
by one Munni Madam on which she had put her signature. She has
admitted that her daughter had not told her earlier about the
occurrence which had earlier taken place.
14. Learned counsel further submits that the evidence of
the victim (PW-2) would not inspire confidence. In her deposition,
she has stated that the house of the appellant is situated in front of
the house of the victim, opposite to the road. She had been
occasionally visiting the house of the appellant on occasion of
marriage and some feast. The appellant has two sons and two
daughters. She has stated that the family of the accused is
comparatively rich and reputed. She was suggested by defence that
there was a dispute between the family of the accused and the
victim on account of drainage of water, but she denied the
suggestion. She admitted that her father had good relationship with
Nurul Naddaf and her father was working in the brick kiln of
Shoaib Khan. This witness has also admitted in paragraph '51' that
her father had gone to Shoaib Khan on the next day of the
occurrence to inform him about the occurrence which had taken
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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place with her and her father had also made a complaint to
Mukhiya and Sarpanch regarding the occurrence.
15. It is submitted that neither Shoaib Khan nor the
Mukhiya or Sarpanch have been examined in this case. The
defence case is that the appellant was having bitter relationship
with the people of the Muslim community, who were in majority
in the village, and it has come in the evidence of the prosecution
witnesses that the appellant had contested election of Panchayat
Samiti Member against Nihal Ahmed Khan.
16. Learned counsel further submits that it has come in
the evidence of the father of the victim, who has deposed as PW-3,
that there are sauchalaya in the courtyard of the house but PW-3
has stated that the sauchalaya are of his brothers. The submission
is that it cannot be believed that despite there being sauchalaya in
the courtyard of the house of the victim, she would go to the
orchard to defecate in the late evening. PW-1 has stated about
good relationship with her husband's brother family but no one of
them has supported the prosecution case. It is pointed out that the
mother and father of the victim have said differently about how
they came to know about the occurrence and when they came to
know it. They are materially inconsistent and their statement
would not inspire confidence.
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17. Learned counsel further submits that in this case two
prosecution witnesses, namely, Ram Pukar Sahni (PW-4) and Ram
Jatan Mahato (PW-6) have not supported the prosecution case.
They have also not been declared hostile. All these witnesses have
stated that there were enmity between the parties. Father of the
victim works in the brick kiln of Shoaib and Shoaib Khan has got
the case lodged through the father of the victim by instigating him.
PW-4 has stated that in the panchayat election, Lal Babu
Paramhans (the appellant) and Shoaib Khan both had contested for
the post of Mukhiya and this witness has also stated that there was
a dispute on playing of loudspeakers on the occasion of marriage
of the niece of Lal Babu. PW-4 has stated that there is no
complaint against Lal Babu Paramhans in the village and the
society. He lives peacefully with all the villagers.
18. It is submitted that Noorul Naddaf (PW-5) who has
good relationship with the father of the victim has stated that he
had come to know that there was a quarrel at the time of marriage
of the niece of Lal Babu on playing of band baja which was
passing through the Masjid. He has stated that except this case, he
had not heard about any complaint against Lal Babu. He has also
confirmed that Lal Babu had contested election. It is submitted
that though this witness has deposed in his examination-in-chief
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
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that he had seen Lal Babu fleeing away when he was going from
the village towards the orchard where is his gaushala and had seen
2-4 ladies present there but on a scrutiny thereof the same would
not be reliable. He has not stated any material circumstance
showing involvement of the appellant in commission of any sexual
assault upon the victim.
19. It is also submitted that Ram Jatan Mahato (PW-6)
has neither deposed on the occurrence nor on the circumstances
after the occurrence. This witness has been cross-examined by
defence and in his cross-examination, this witness has
categorically stated in paragraph '10' that Lal Babu Paramhans has
been implicated by all these people in a false case.
20. It is further submitted that I.O. (PW-7) has
categorically deposed that she had not found any abnormal mark
of either movement or dragging at the place of occurrence which
was shown to her. She had taken over charge of investigation on
26.03.2019
and had produced the victim girl for the first time in
court on 28.03.2019. The victim had stated in her statement about
giving of Rs. 200 by the appellant though it was not mentioned in
the written application or in the restatement. The I.O. has stated in
paragraph '24' that the independent witness Ram Jatan Mahato had
said that Lal Babu Paramhans has four children, there is no
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
complaint against him, he is a person of good moral and character
and prior to this occurrence, there were disputes between both the
families on account of drainage of dirty water and for that reason a
false case has been registered. I.O. has also stated in paragraph
'25' that Ram Pukar Sahni (PW-4) had stated that the allegations
against Lal Babu Paramhans are false and he has been falsely
implicated on account of dispute over drainage of water and also
due to local politics. The I.O. has recorded in paragraph '26' of her
deposition that the victim had submitted an application for getting
compensation. She has also contradicted the statement of the
informant as according to her, the informant had not stated either
in her written statement or in her restatement that two days prior to
Holi when the victim had gone to ease out/defecate at 6-7:00 PM
then the accused had committed rape on her and one day after Holi
when she had gone to defecate then the accused pulled her and
showed pistol and threatened her to kill. The informant had only
stated that the accused had said that if she would tell it to her
mother and father then she would be killed.
21. Learned counsel submits that it is a clear case of
false implication of a reputed person in the village only because of
the quarrel between the two families, taking advantage of the same
Shoaib Khan and other local political opponents of the appellant,
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
who belong to another community, hatched a conspiracy and
falsely implicated the appellant. It is pointed out that the doctor
(PW-8) has clearly opined that there was no conclusive evidence to
show commission of sexual intercourse with emission with her.
There was no injury either external or internal on the body of the
victim. It is submitted that if a forcible act of rape could have been
committed on the victim in the orchard, then some mark of injury
on her back or any other part of the body would have been
definitely there but that has not been found.
Submissions on behalf of the State and the Informant
22. On the other hand, learned Additional Public
Prosecutor for the State as well as learned counsel for the
informant have opposed the appeal. It is submitted that in this case
the alleged occurrence took place on 24.03.2019. Her date of birth
as mentioned in the school admission register is 16.10.2004 and
the doctor has assessed her age between 14-15 years. Thus, there
cannot be any dispute that the victim was a minor at the time of
occurrence.
23. Learned counsel further submits that to prove the
prosecution case it is not required to prove that there must be some
external or internal injury on the body of the victim. It is submitted
that in this case, the sole testimony of the victim (PW-2) may be
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
relied upon to sustain the conviction of the appellant. Save and
except some minor contradictions in the prosecution evidence,
there is no major contradiction to disbelieve the prosecution case.
Consideration
24. We have heard learned counsel for the parties and
perused the trial court's records. On perusal of the records, we find
that so far as the age of the victim girl is concerned, the
prosecution has brought on record a photocopy of School Transfer
Certificate which was marked 'X' at the instance of the I.O. (PW-
7) but it has not been proved later on in accordance with law. The
In-charge Headmaster of the school (PW-9) produced a school
admission register of Class-VI showing that the victim was
admitted in the said school on 10.04.2015 in Class-VI. Thus, this
is not the first school admission register of the victim. The date of
birth of the victim recorded in the said register is 16.10.2004. In
view of the judgment of the Hon'ble Supreme Court in the case of
P. Yuvaprakash (supra), the School Transfer Certificate cannot be
relied upon to prove the age of the victim. However, we find that
in this case, the doctor (PW-1) has also opined that the medical
examination of the victim revealed her age between 14-15 years. A
plus/minus two years with the same would also lead to a maximum
upper extremity age of only seventeen years, therefore, the victim
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
(PW-2) in this case would come in the category of a child as
defined under Section 2(d) of the POCSO Act.
25. At this stage, we would therefore examine as to
whether the victim (PW-2) in this case may be taken as a sterling
witness so as to rely upon her testimony for purpose of conviction
of the appellant and further we would also examine whether the
appellant has been able to demonstrate that it is a case of false
implication because of his local rivalry particularly because he was
contesting elections against some persons who did not like him.
26. On going through the evidences on the record, we
have noticed that in this case, the first occurrence of rape is said to
have been committed two days prior to Holi festival. The victim
(PW-2) has stated in her evidence that about two years ago, there
was a shop in her house which was being run by her mother, sister,
father and brother were also attending their shop. She has stated in
paragraph '36' of her deposition that four days prior to Holi
festival, the appellant had given her 200 rupees at her shop. He had
not purchased anything but just went away after giving Rs. 200.
There was no one else at that time at the shop. She has stated that
she had not opposed to the giving of that money and had not asked
that why the appellant had given that money to her. In paragraph
'41' she has also stated that she had not disclosed this fact of
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
giving of Rs. 200 to her mother, father, brother, sister and uncle.
The accused has said not to disclose it but except that he had not
said anything else. Having said so in paragraph '42', this witness
again says that she had disclosed this fact to her mother, father,
brother and sister after 4-5 days. She has stated in her deposition
that she had gone in the orchard to defecate two days prior to Holi
festival in the orchard of one Lakshmi Ram and one day after Holi
festival also she had gone in the orchard of Lakshmi Ram. She had
gone alone in the orchard. She had received threat on the first day
but she had not disclosed it to her mother and father. She disclosed
the second occurrence to her mother and father and at that time
only her mother, father and sister were there. She has stated in
paragraph '57' that she had told the Magistrate and police that two
days prior to Holi when she had gone to defecate then the
appellant was present there from before who pulled her there and
committed rape on her.
27. In paragraph '58' she has stated that after one day of
Holi when she had again gone to defecate at about 6-7 PM, the
appellant had committed rape on her and threatened her by
showing gun that if she would tell it to anyone then her parents
and she would be killed. In paragraph '60' she has stated that she
had objected to the occurrence which took place with her. She was
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
dragged for 9-10 feet and during this she had also shouted but on
her shoutings no woman came. She has stated that some boys
came after she had already been raped. She has stated that when
the appellant was present there then she had shouted and boys had
come. She had started shouting immediately when he had caught
hold of her and within 3-4 minutes thereafter the boys had come
and during this period in order to save herself 'uthapatak' with her
and the appellant kept on going and there were soil on her body
and her leg was also injured, her backside had bruises due to
dragging and her hands were injured. On analysis of this part of
the evidence of PW-2 it appears that prior to the first occurrence,
she had been given Rs. 200 by the appellant but without saying
anything that why the money is being given to her. She did not
disclose this to her parents immediately and two days prior to Holi,
she says that she had gone to the orchard where rape was
committed. During the commission of rape at first instance, there
is no allegation that any threat was given to the victim (PW-2) by
the appellant but she chose not to disclose it to her parents.
28. This Court further finds that regarding the second
occurrence she has stated that it took place one day after Holi
festival and this time the appellant had shown her gun and
threatened her to kill and committed rape on her but in the same
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
deposition, the victim (PW-2) says that the moment the appellant
caught hold of her hand, she started shouting and within 3-4
minutes some boys came there, during this period she was trying
to save herself and in the said exercise 'uthpatak' between the
accused and the victim were going on in which the victim has
sustained injury also. This statement of the victim in paragraph
'60' of her deposition is completely contrary to paragraph '58' of
her deposition where she has stated that the appellant had
committed rape with her by showing threat of gun. The victim has
not disclosed the name of the boys who had arrived within 3-4
minutes in the orchard. She has stated that the whole body was
having soils, she had suffered bruises on her leg and back as also
injured her hand but the doctor (PW-8) has categorically stated that
no injury or stains were found on external or internal part. There
was no injury either external or internal on the body of the victim.
29. The medical examination report (Exhibit 'P-6/PW-8')
clearly rules out the story made by PW-2 in paragraph '60' of her
deposition. Thus, it can be safely held that the story propounded by
PW-2 that there were 'uthapatak' for 3-4 minutes and then the
boys had come in the orchard are only an afterthought which have
been developed in course of trial. This medical report gets further
strengthened from the deposition of the I.O. (PW-7) who has
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
clearly stated in paragraph '19' of her deposition that at the place
of occurrence, which was shown to her, she had not found any sign
of movement of any person or dragging of any person. She had not
found any abnormal circumstance at the place of occurrence. This
Court, therefore, finds it unsafe to rely upon the testimony of PW-2
as regards the place and manner of occurrence. It cannot be
believed that the appellant will give Rs. 200 to the victim without
saying anything and then the victim would go to the orchard two
days prior to Holi where the appellant would be present from
before and would commit rape on her which she would not
disclose to her parents.
30. This Court further finds that in paragraph '64' of her
deposition, the victim (PW-2) has stated that she had given
information about the occurrence after 4-5 days of Holi at 8:00 PM
in her house where her parents and sister were present. Her parents
were very angry. They disclosed this occurrence to Mukhiya and
Sarpanch and bade papa. She has stated that Nihal Ahmad @
Chhote Khan is a Member of the Panchayat Samiti. She has stated
that Mukhiya and Sarpanch advised to lodge a complaint in Mabby
Police Station. She was suggested by the defence that Mukhiya and
Sarpanch had called the media people but the witness denied her
awareness regarding this. It is evident from her deposition that the
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
present case was lodged on the advice of Mukhiya and Sarpanch.
In this background, the defence has suggested that because of the
local politics, the particular community to which Mukhiya and
Sarpanch belong to and at the instance of Shoaib Khan, under
whom her father was working, the present case was lodged. The
victim denied this suggestion, however, we find from the evidence
of the father of the victim that he has stated in paragraph '6' that he
came to know about the occurrence when there was a rumour in
the whole village in the same night when the second occurrence
had taken place. According to him, the villagers were talking to
each other regarding the occurrence on which he had asked his
wife and then he came to know about the occurrence. Thus, PW-3
claims that he had come to know about the occurrence on the very
next day of the occurrence. At the same time, the mother of the
victim (PW-1) has also stated in paragraph '35' that her daughter
had given the information regarding the occurrence one day after
the occurrence in the morning at 6-7:00 AM whereafter on the next
day she had gone to the police station. It is, thus, evident that two
days after the alleged second occurrence, the informant had gone
to the police station to lodge the present case after the Mukhiya
and Sarpanch told her to lodge the case in Mabby Police Station.
Thus, PW-1, PW-2 and PW-3 are materially inconsistent on the
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
point of information with regard to the occurrence available to
them. PW-1 has stated that her husband had not submitted any
written complaint to Sarpanch or in Mabby O.P.
31. As regards the enmity between the prosecution side
and the appellant, there are sufficient materials on the record. In
this regard, we refer the evidence of PW-1. She denied her
awareness that the appellant had contested Panchayat Election. In
paragraph '22' of the deposition, she denied the suggestion that the
appellant had given an application to the Circle Officer against
drainage water but we find that through defence witness no. 1, the
appellant has brought on record the acknowledgment receipt of the
application dated 14.03.2019 of the clerk in the Circle Office as
Exhibit D-1/DW-1 and the identity card of the candidate issued by
the Panchayat Election Officer showing that the appellant was a
candidate for member of Panchayat Samiti, he has also proved the
candidate entry pass in the name of the appellant of 2016
Panchayat Election. These documents are Exhibits 'D-2/DW-1'
and 'D-3/DW-1' respectively. From Exhibit 'D-4/DW-1' and
Exhibit 'D-X/DW-1', it is further proved that the appellant had
contested the Election. DW-1 has stated that the appellant had lost
the Election to his opponent Mohd. Nehal Ahmad. Despite all this,
PW-1 denied her knowledge that the appellant had contested
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
Panchayat Election. This conduct of PW-1 shows that she was
trying to suppress the fact that there were enmity between the
appellant and her family on account of drainage of water and that
there was local political rivalry between the appellant and some
persons of a particular community.
32. This Court further finds that when the victim came
to depose as PW-2, she was also suggested by the defence that
there was dispute over drainage of dirty water of the sewerage and
in this connection, a quarrel had taken place between the appellant
and her mother but PW-2 denied the suggestion. Thus, she also
tried to suppress this quarrel on account of drainage of sewerage
water. In her deposition, PW-2 has admitted in paragraph '27' that
her father has good relationship with Nurul Naddaf. It is evident
that the father of the victim was having good relationship with the
opponents of the appellant. She has also stated in paragraph '51' of
her deposition that her father had gone to the brick kiln owner
Shoaib Khan to tell him about the occurrence. It is evident from
the deposition of PW-2 that her father was in the company of the
local political opponents of the appellant, therefore, the case of the
defence that the appellant has been framed in a false case cannot
be thrown away. There are ample materials on the record to prove
the bad relationship between the parties.
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
33. On behalf of the prosecution, Ram Pukar Sahni (PW-
4) has been examined as an independent witness. He is a
neighbour of the informant and knows the appellant also. In his
examination-in-chief, he has stated that the appellant and the
informant had regular quarrel over drainage of the sewerage water.
He has also stated that on the occasion of marriage (matkor) of the
niece of the appellant, Shoaib Khan and his 2-4 persons had come
near Masjid and beaten the band baja people on playing the bands,
due to this, both the parties had enmity. PW-4 has further stated
that the father of the victim works in the brick kiln of Shoaib and it
is Shoaib Khan who has got a case lodged falsely implicating the
appellant by instigating the father of the victim. In his cross-
examination, PW-4 has stated that there is no complaint in the
village and the society against the appellant. The Muslim
community is in majority in the panchayat and they do not behave
well with the Hindu community. In paragraph '9' of his deposition,
this witness has stated that the appellant lives peacefully in the
village.
34. This witness has though deposed against the
prosecution's case, he has not been declared hostile by the
prosecution. Similarly, another independent witness, Ram Jatan
Mahato (PW-6) has not deposed in favour of the prosecution. He
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
has deposed on the line of PW-4 only. In paragraph '7' of his
deposition, this witness has stated that on the occasion of the
marriage (matkor) of the niece of the appellant, there were quarrel
between the two groups and the people of a particular community
had threatened the appellant that he would bear the consequences.
This witness has stated in paragraph '10' that those people had
falsely implicated the appellant. This witness is also a neighbour
of the informant. He has stated that the two brothers and other
members of the family of the father of the victim had not
supported this case and therefore they have not deposed in favour
of the prosecution. This witness has also not been declared hostile.
35. What will be the effect of not declaring PW-4 and
PW-6 hostile may be found in the judgment of the Hon'ble
Supreme Court in case of Mukhtiar Ahmed Ansari vs. State
(NCT of Delhi) reported in (2005) 5 SCC 258. Paragraph '30' and
'31' of the said judgment are being extracted hereunder for a ready
reference:-
"30. A similar question came up for consideration before
this Court in Raja Ram v. State of Rajasthan, (2005) 5
SCC 272. In that case, the evidence of the Doctor who
was examined as a prosecution witness showed that the
deceased was being told by one K that she should
implicate the accused or else she might have to face
prosecution. The Doctor was not declared "hostile". The
High Court, however, convicted the accused. This Court
held that it was open to the defence to rely on the
evidence of the Doctor and it was binding on the
prosecution.
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
31. In the present case, evidence of PW 1 Ved Prakash
Goel destroyed the genesis of the prosecution that he had
given his Maruti car to police in which police had gone to
Bahai Temple and apprehended the accused. When Goel
did not support that case, accused can rely on that
evidence."
36. In the case of Raja Ram vs. State of Rajasthan
reported in (2005) 5 SCC 272, the Hon'ble Supreme Court has
held that the testimony of PW-8 Dr. Sukhdev Singh would be
binding on the prosecution because he was not declared hostile by
the Public Prosecutor in the trial court. On the strength of these
judgments of the Hon'ble Supreme Court, this Court would
conclude that the evidence of PW-4 and PW-6 would be binding
upon the prosecution as they have not been declared hostile.
37. So far as the evidence of Nurul Naddaf (PW-5) is
concerned, in his examination-in-chief, he has stated that at about
6:00 PM, he was going from his village towards the orchard where
his gaushala is situated, he saw the appellant fleeing away, after
some time, he saw that in the orchard 2-4 women and men were
standing. This evidence of PW-5 in his examination-in-chief
would not inspire confidence for the reason that the victim (PW-2)
has stated in her evidence that when the appellant caught hold of
her hand, she started shouting but on shouting no women had
come in the orchard, after 3-4 minutes some boys had come.
According to PW-2, at that time, the darkness had already
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
prevailed and she has categorically stated in her deposition that she
had identified the appellant by his voice. In paragraph '59', she
has stated that at the time when occurrence had taken place, the
night was dark and there were darkness at the place of occurrence.
PW-5 has admitted in paragraph '3' of his deposition that he had
not received any notice from court to depose. He had come to
depose on the asking of the father of the victim with whom he had
good relationship. This witness has also admitted in his cross-
examination that he had heard about the quarrel which had taken
place at the time of marriage of the niece of the appellant on
playing of the band baja near the Masjid. In his deposition, he has
stated that he had seen the appellant going towards the village, at
that time it was 6:00 PM and there were light (ujala), he had seen
4-5 ladies and gents but he cannot say their names and he had not
seen them by face. It is evident that the statement of PW-5 is in
complete contradiction with the evidence of the victim (PW-2)
with regard to the conditions prevailing at the place of occurrence
at the relevant time and the presence of any women.
38. Munni Kumari (PW-7) in this case is the Sub-
Inspector of Police who has given a completely different place of
occurrence and according to her, the place of occurrence in this
case is situated one kilometre south to the house of the informant
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
and up to 500 metres, there are houses whereafter there are mango
and bamboo orchards. She has stated that the place of occurrence
is said to be the orchard of Lakshmi Ram. In the north, there is
orchard of Mirjapur people which is looked after by the appellant,
in south there is a wheat field of Panchkari Yadav, in east there is
orchard of Kalar Yadav and in west, there is mango orchard of
Vishnu Yadav. The victim has, however, stated that there are 40-50
houses in between her house and the orchard and after 40 houses
from her house, the orchard starts but according to the I.O. the
place of occurrence is 500 metres inside the orchard. She says
"?kVukLFky okfnuh ds ?kj ls yxHkx 1 fdeh nf{k.k gSA ftlesa 500 ehVj
rd ?kj gSA mlds ckn vke ,oa ckal dk cxhpk 'kq: gksus ls 500 ehVj ckn
bl dkaM dk ?kVukLFky y{eh jke dk vke dk cxhpk gSA "
39. It is evident from the deposition of the I.O. that at
least half kilometre inside the orchard of mango and bamboos, the
occurrence is said to have taken place. It is highly unbelievable
that the victim would go to defecate in the dark evening/night 500
metres inside the orchard. This is another circumstance which
seems highly improbable and falsifies the prosecution story. The
I.O. (PW-7) has clearly stated in paragraph '19' of her deposition
that at the place of occurrence, she had not found any sign of
movement of persons or dragging or any other abnormal
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
circumstance. To this Court, therefore, there is no iota of doubt
that the prosecution has miserably failed to prove the place of
occurrence and the whole story of the victim that the occurrence
had taken place when she had gone to defecate in the orchard of
Lakshmi Ram is not duly proved.
40. We have already taken note of the evidence of doctor
(PW-8) who has stated that there was no injury either external or
internal on the body of the victim. If the victim would have
indulged in 'uthapatak' for 3-4 minutes at the place of occurrence
in the orchard and she claimed that she had suffered injury on her
back, leg and hands, the medical examination of the victim (PW-2)
would have definitely revealed at least some scratches on her back
but nothing of that sort has been found.
41. In the present case, this Court is also required to take
note of Section 29 of the POCSO Act which reads as under:-
"29. Presumption as to certain offences.- Where a
person is prosecuted for committing or abetting to commit
any offence under Sections 3, 5, 7 and Section 9 of this
Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence,
as the case may be unless the contrary is proved."
42. In the case of Veerpal @ Titu versus State
(CRL.A.223/2023 dated 15th April, 2024), the Hon'ble Delhi
High Court has dealt with the presumptions provided under
Section 29 of the POCSO Act. This Court has discussed the case
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
laws in the case of Subrata Biswas and Another versus State
reported in 2019 SCC Online Cal 1815, State of Kerala reported
in (2019) 1 KLT 935 and in the case of Heera Das Vs. State of
Bihar & Anr. reported in 2025 (2) BLJ 517. Paragraph '33', '34'
and '35' of the judgment in the case of Heera Das (supra) are
quoted hereunder for a ready reference:-
"33. In the case of Veerpal @ Titu (supra), the
Hon'ble Delhi High Court has discussed the kind of
presumption provided under Section 29 of the POCSO
Act. Paragraph '20' of the judgment in the case of
Veerpal @ Titu (supra) is quoted hereunder for a
ready reference:-
"20. Section 29 of POCSO Act provides that
Court shall presume that the accused has
committed the offence for which he is charged
with, until contrary is proved. However, the
presumption would operate only when the
prosecution proves the foundational facts in the
context of allegation against the accused beyond
reasonable doubt. After the prosecution
establishes the foundational facts, the
presumption raised against the accused can be
rebutted by discrediting the prosecution
witnesses through cross-examination and
demonstrating the gaps in prosecution version or
improbability of the incident or lead defence
evidence in order to rebut the presumption by
way of preponderance of probability.
Keeping the same in perspective, the prosecution
in the first instance is required to establish the
foundational fact that the incident, as alleged,
was conveyed by the victim to her dadi
(grandmother) on 16.09.2016 (i.e. the day of
lodging of FIR). However, the evidence and
statements during investigation, as discussed
above, reflect different dates of alleged
communication of the incident, which throws a
doubt on the prosecution version. In view of
above, in absence of foundational fact not being
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
proved beyond reasonable doubt, the reliance
placed upon presumption under Section 29 & 30
of POCSO Act by learned Trial Court to base
conviction, appears to be misplaced. Taking in
the alternative, even if the foundational facts are
considered to be proved, to make the
presumption under Section 29 of POCSO Act,
the same stands discredited by way of
discrepancies brought in cross-examination of
the victim, PW3 and witnesses examined in
defence.
The presumption of guilt under Section 29 & 30
of POCSO Act taken by the learned Trial Court
could not be an edifice to convict the appellant
since testimony of victim is unreliable and there
are serious flaws and gaps in the prosecution
case. As a wrongful acquittal shakes the
confidence of people, a wrongful conviction is
far worse. A child abuser in the eventuality of
false implication even continues to suffer a blot
of social stigma which is much more painful than
the rigours of a trial and imprisonment.
Prosecution case is marred by inadequacies and
contradictions which strike to the root of
prosecution case and, as such, prosecution has
failed to bring home the charge against the
accused beyond reasonable doubt.
For the foregoing reasons, appeal is allowed and
the judgment and order on sentence passed by
the learned Trial Court is set aside. Appellant is
acquitted and be released forthwith, if not
required in any other case.
Pending applications, if any, also stand disposed
of.
A copy of this judgment be forwarded to the Jail
Superintendent and the learned Trial Court for
information and compliance. A copy be also
provided to the appellant, free of cost."
34. Similarly, in the case of Subrata Biswas
(supra), the Hon'ble Division Bench of Calcutta
High Court has discussed the scope of statutory
presumption under Section 29 of the POCSO
Act, 2012. Paragraphs '22' and '23' of the
judgment in the case of Subrata Biswas (supra)
are quoted hereunder for a ready reference:-
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
"22. The statutory presumption applies when a
person is prosecuted for committing offence
under Sections 5 and 9 of the Act and a reverse
burden is imposed on the accused to prove the
contrary. The word "is prosecuted" in the
aforesaid provision does not mean that the
prosecution has no role to play in establishing
and/or probablising primary facts constituting
the offence. If that were so then the prosecution
would be absolved of the responsibility of
leading any evidence whatsoever and the Court
would be required to call upon the accused to
disprove a case without the prosecution laying
the firm contours thereof by leading reliable and
admissible evidence. Such an interpretation not
only leads to absurdity but renders the aforesaid
provision constitutionally suspect. A proper
interpretation of the said provision is that in a
case where the person is prosecuted under
Section 5 and 9 of the Act (as in the present
case) the prosecution is absolved of the
responsibility of proving its case beyond
reasonable doubt. On the contrary, it is only
required to lead evidence to establish the
ingredients of the offence on a preponderance
of probability. Upon laying the foundation of its
case by leading cogent and reliable evidence
(which does not fall foul of patent absurdities or
inherent probabilities) the onus shifts upon the
accused to prove the contrary. Judging the
evidence in the present case from that
perspective, I am constrained to hold that the
version of the victim (PW-1) and her mother
(PW-2) with regard to twin incidents of 24th
March, 2016 and 18th April, 2016 if taken as
whole, do not inspire confidence and runs
contrary to normal human conduct in the
backdrop of the broad probabilities of the
present case.
23. Hence, I am of the opinion that the evidence
led by the prosecution to establish the primary
facts suffer from inherent contradictions and
patent improbabilities particularly the
inexplicable conduct of the victim herself. One
part of the prosecution case improbabilises the
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
other part to such an extent that no man of
reasonable prudence would accept the version
as coming from the witnesses. Hence, I am of
the opinion that the factual matrix of the case
does not call for invocation of the aforesaid
statutory presumption so as to convict the
appellant on the charges levelled against him."
35. The same views have been expressed by the
Hon'ble Kerala High Court in the case of Joy
versus State of Kerala reported in (2019) 1
KLT 935. It has been held that the duty to rebut
the presumption arises only after the prosecution
has established the foundational facts of the
offence alleged against the accused and the court
must be on guard to see that the application of
presumption, without adverting to essential facts
shall not lead to injustice. In the present case, the
foundational facts such as that the victim was
taken away by the appellant at 11:00 am by
alluring her after giving a biscuit and then the
rape was committed inside the house has not
been established. The prosecution story as
discussed in the written report giving rise to the
present FIR and then the evidence of PW-7 are
materially inconsistent and this Court has
discussed hereinabove why the evidence of PW-7
would not inspire confidence."
43. In a case under POCSO Act, the presumption of
innocence of an accused would not belie. In the case of
Ramanand vs. State of U.P. reported in AIR 2022 (SC) 5273, the
Hon'ble Supreme Court has held in paragraph '99' and '101' as
under:-
"99. It is sufficient if the accused person succeeds in
proving a preponderance of probability in favour of his
case. It is not necessary for the accused person to prove his
case beyond a reasonable doubt or in default to incur a
verdict of guilty. The onus of proof lying upon the accused
person is to prove his case by a preponderance of
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
probability. In American Jurisprudence, 2nd Edn., Vol. 30,
the expression "preponderance of evidence" has been
defined in Article 1164. In America the term means "the
weight, credit and value of the aggregate evidence on
either side, and is usually considered to be synonymous
with the term greater weight of the evidence", or "greater
weight of the credible evidence". It is a phrase which, in
the last analysis, means probability of the truth. To be
satisfied, certain, or convinced is a much higher test than
the test of "preponderance of evidence". The phrase
"preponderance of probability" appears to have been taken
from Charles R. Cooper v. F.W. Slade Charles R. Cooper
v. F.W. Slade, (1857-59) 6 HLC 746. The observations
made therein make it clear that what "preponderance of
probability" means "more probable and rational view of
the case", not necessarily as certain as the pleading should
be.
101. The inalienable interface of presumption of
innocence and the burden of proof in a criminal case on
the prosecution has been succinctly expounded in the
following passage from the treatise The Law of Evidence,
5th Edn. by Ian Dennis at p. 445:
"The presumption of innocence states that a person is
presumed to be innocent until proven guilty. In one sense
this simply restates in different language the rule that the
burden of proof in a criminal case is on the prosecution to
prove the defendant's guilt. As explained above, the
burden of proof rule has a number of functions, one of
which is to provide a rule of decision for the fact-finder in
a situation of uncertainty. Another function is to allocate
the risk of mis-decision in criminal trials. Because the
outcome of wrongful conviction is regarded as a
significantly worse harm than wrongful acquittal the rule
is constructed so as to minimise the risk of the former. The
burden of overcoming a presumption that the defendant is
innocent therefore requires the State to prove the
defendant's guilt.""
44. In our considered opinion, the appellant in this case
has been able to demonstrate in his favour by way of
preponderance of probability of his false implication in this case.
Patna High Court CR. APP (DB) No.374 of 2023 dt.08-10-2025
As we have held that the victim (PW-2) in this case cannot be said
to be a sterling witness and the evidences available on the record
do not corroborate her testimony by any stretch of imagination,
this Court is of the considered opinion that the impugned judgment
and order cannot sustain and the appellant has made out a case of
acquittal giving him benefit of doubt. Accordingly, we set aside the
impugned judgment and order. The appellant is acquitted of the
charges giving him benefit of doubt. He shall be released forthwith
if not wanted in any other case.
45. This appeal is allowed.
46. Let a copy of this judgment together with the trial
courts' record be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Sourendra Pandey, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 10.10.2025
Transmission Date 10.10.2025
